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The Impact for the Church of England of the Human Rights Act 1998

  • Mark Hill (a1)

Though the first nation state of the Council of Europe to ratify the European Convention on Human Rights on 18th March 1951, and though permitting individual petition to the European Court in Strasbourg since 1966, the United Kingdom declined to give effect to the Convention in its domestic law until the government recently passed the Human Rights Act 1998. The Act received the Royal Assent in November 1998 and will come into force on 2nd October 2000.

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2 The Convention for the Protection of Human Rights and Fundamental Freedoms (‘The European Convention on Human Rights’) (1950).

3 See generally Lester, A., ‘Fundamental Rights: The United Kingdom Isolated’ [1984] Public Law 47, and Lester, A., ‘UK Acceptance of the Strasbourg Jurisdiction: What Really went on in Whitehall in 1965’ [1998] Public Law 237.

4 Note that in respect of certain devolved powers, the Human Rights Act 1998 is already in force in Wales (Government of Wales Act 1998 (c 38)), Scotland (Scotland Act 1998 (c 46)) and Northern Ireland (Northern Ireland Act 1998 (c47)). Certain parishes of the Church of England are in Wales: see 5 Ecc LJ 252. 253. The implementation of the Human Rights Act 1998 in England has been delayed mainly to permit the judiciary to be trained in its operation and in the jurisprudence of the European Court of Human Rights and of the Commission. Foremost in the education of the judiciary has been Lord Justice Sedley. who will be speaking at the Ecclesiastical Law Society Residential Conference in Trinity Hall. Cambridge, on 30th March to I st April 2001. See also Laws, J.. ‘The Impact of the Human Rights Act on Judicial Decision-making’ [1998] EHRLR 676–682.

5 Human Rights Act 1998 (c 42), s 3(1). In the event of there being an irreconcilable inconsistency, the domestic legislation prevails subject to a ‘fast-track’ system of executive action to bring English law into line with the Convention: see s 4 (declaration of incompatibility), and s 10 (power to take remedial action). ‘Convention rights’ is defined in s 1 (1) by reference to specific articles of the Convention and its Protocols, listed under the heading ‘Convention rights’ below.

6 Ibid, s 2. This jurisprudence includes judgments, decisions, declarations or advisory opinions of the European Court of Human Rights, opinions and decisions of the Commission and decisions of the Committee of Ministers, whenever made or given: s 2(l)(a)–(d). The latter two ceased to produce such decisions and opinions as from 1st November 1998.

7 Ibid, s 6(1). ‘Public authority’ includes a court or tribunal and any person certain of whose functions are of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament: s 6(3). ‘Parliament’ does not include the House of Lords in its judicial capacity: s 6(4).

8 See ibid, s 8(2). In determining whether to make an award and how much to give, a court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention: Human Rights Act 1998, s 8(4).

9 Ibid, s 21(1) ‘primary legislation’ (d), (e).

10 Ibid, s 3(1).

11 Ibid, s 3(1). The interpretation section (s 21) would seem to be sufficiently broadly drafted to include a Canon as subordinate legislation, being an ‘other instrument’ made under ‘primary legislation’ (ie the Synodical Government Measure 1969 (No 2)): see s21(l) ‘subordinate legislation' (f).

12 Ibid, s 3(2)(a).

13 See eg Smith, A.. ‘The Human Rights Act 1998: The Constitutional Context’, a paper delivered at the University of Cambridge Centre of Public Law at a conference entitled ‘The Human Rights Act and the Criminal Justice and Regulatory Process’ on 9 and 10 January 1999.

14 Note the extent of the search for legislative intent as discussed in Pepper v Hart [1993] AC 593, [1993] 1 All ER 42, HL.

15 See the Human Rights Act 1998, s 4(4).

16 See ibid, s 10(6).

17 Competent courts include the High Court, the Court of Appeal, the House of Lords and the Privy Council: ibid, s 4(5). The High Court has relevance for the Church of England in relation to committal for contempt and judicial review, as to which see Hill, M.. ‘Judicial Review of Ecclesiastical Courts’ in Doe, N., Hill, M. and Ombres, R. (eds), English Canon Law (Cardiff, 1998), pp 104114. The Privy Council is of more than theoretical importance: see Cheesman v Church Comrs (1999) 5 Ecc LJ 305, PC.

18 This is to be inferred from the silence of the Human Rights Act 1998, s 19, and the anomalous parliamentary procedures for legislation by Measure as discussed in Hill, M., Ecclesiastical Law (London, 1995). pp 19ff.

19 ie synods, councils, commissions, courts, tribunals and committees and perhaps also bishops, incumbents and churchwardens. For the meaning of ‘public authority’, see note 7 above.

20 Human Rights Act 1998, s 6(1). The Convention rights are summarised below.

21 eg a Measure, the meaning of which is apparent on its face.

22 Human Rights Act 1998. s 6(2)(a).

23 Ibid, s 5(2)(b).

24 Ibid. s7(1).

25 The only assistance afforded by the Human Rights Act 1998 is the somewhat circular s 6(3). for which see note 7 above.

26 See R v Provincial Court of the Church in Wales, ex parte Williams (1999) 5 Ecc LJ 217 (Latham J); and R v Dean and Chapter of St Paul's Cathedral and the Church in Wales, exparte Williamson (1998) 5 Ecc LJ 129 (Sedley J).

27 R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, ex pane Wachmunn [1993] 2 All ER 249. [1992] 1 WLR 1306. See also R v London Beth Din. ex parte Bloom [1988] COD 131. Note however R v Rabbinical Commission, ex parte Cohen (1987) (unreported), where the decision of the commission as to licensing matters under the Slaughterhouses Act 1974 was deemed to have the necessary public element for judicial review.

28 R v Imam of Bury Park Jame Masjid Luton, ex parte Sulaiman Ali [1994] COD 142.

29 European Convention on Human Rights, Art 10.

30 See HC Official Report (‘Hansard’) 20th May 1998, col 1020.

31 I am particularly grateful to Professor Cole Durham and Monsignor Roland Minnerath for their helpful observations on my paper, ‘Church Autonomy in the United Kingdom’, presented to the Second European/American Conference on Religious Freedom. ‘Church Autonomy and Religious Liberty’. University of Trier, Germany, 27th to 30th May 1999 (publication forthcoming)

32 Tyler v United Kingdom (1994) 4th April, ECHR 21283/93.

33 This quotation is from Handyside v United Kingdom (1976) 1 EHRR 737 at 753. para 48, E Ct HR.

34 Buckley v United Kingdom (1996) 23 EHRR 101 at 129, ECt HR.

35 See Clapham, A.. ‘The Privatisation of Human Rights’ [1995] EHRLR 20. and Clapham, A.. Human Rights in the Public Sphere (Oxford, 1993).

36 Findlay v United Kingdom (1991) 24 EHRR 221, ECt HR.

37 See eg Edwards v United Kingdom (1992) 15 EHRR 417, E Ct HR, and Gautrin v France (1999) 28 EHRR 196, E Ct HR. In relation to the disciplinary decisions of doctors, see Albert and Le Compte v Belgium (1983) 5 EHRR 533, E Ct HR.

38 See Smith v Secretary of Stale for Trade and Industry (1999) Times, 15th October.

39 McGonnell v United Kingdom (Application 28488/95). Times, 22nd February 2000, noted in Recent Ecclesiastical Cases at pp 491 f of this issue.

40 See generally De Cubber v Belgium (1984) 7 EHRR 236, E Ct HR, and Findlay v United Kingdom (1997) 24 EHRR 221, E Ct HR. Note also Cable v United Kingdom and Hood v United Kingdom (1999), Times. 11th March, E Ct HR.

41 See Starrs and Chalmers v Ruxton [2000] UKHRR 78. High Ct of Justiciary, noted in Recent Ecclesiastical Cases at pp 489f of this issue. In the light of this decision, all assistant recorders in England and Wales have now been appointed full recorders by the Lord Chancellor, thereby giving them greater job security.

42 Tyler v United Kingdom (1994) 4th April, ECHR 21283/93.

43 See Lester, A. and Pannick, D., Human Rights Law and Practice, para 4.6.10.

44 The Commission declared it to be an admissible matter that the lack of a public hearing in small claims cases in the county court constituted a breach of Article 6 of the Convention: Scarth v United Kingdom. Note also R v Chancellor of the Chichester Consistory Court, ex parte News Group Newspapers [1992] COD 48, discussed in Hill, M., ‘Judicial Review of Ecclesiastical Courts’r in Doe, N., Hill, M. and Ombres, R. (eds). English Canon Law (Cardiff 1998), pp 104114.

45 See Hadjianastassiou v Greece (1992) 16 EHRR 219, E Ct HR, and Hiro Balani v Spain (1994) 19 EHRR 565, E Ct HR.

46 See Stefan v General Medical Council (1999) Times, 11 March.

47 See the Ecclesiastical Jurisdiction Measure 1963 (No 1). s 28(e), discussed in Hill, M., Ecclesiastical Law (London. 1995), pp 349353, and Hill, M., ‘Ecclesiastical Judicial Process’ in Clergy Discipline in Anglican and Roman Catholic Canon Law (Wales, forthcoming).

48 This had been the case in Attorney-General v Williamson (1998) 6th March, CA (unreported).

49 See the Incumbents (Vacation of Benefices) Measure 1977 (No 1), s 7(1). Schedule. Pt II.

50 Ibid, s 7A, was added by the Incumbents (Vacation of Benefices) (Amendment) Measure 1993 (No 1), s 5.

51 See MS v Sweden (1997) 3 BHRC 248.

52 See Airey v Ireland (1979) 2 EHRR 305, E Ct HR, and Benham v United Kingdom (1996) 22 EHRR 293, E Ct HR. Note Article 6(3)(c) of the Convention, which provides that a defendant in a criminal case has the right to defend himself in person or through legal assistance of his own choosing, or, if he cannot afford to pay for legal assistance, to be given it free when the interests of justice so require. In relation to the availability of civil legal aid more generally, see Faulkner v United Kingdom (30308/96)(2000) Times, 11 th January.

53 See clause 40 of the draft Clergy Discipline Measure which is currently before General Synod.

54 R v A Local Authority in the Midlands and a Police Authority in the Midlands, ex parte LM [2000] UKHRR 143 (Dyson J).

55 Lustig-Prean and Beckett v United Kingdom (1999) Times, 11 th October, E Ct HR.

56 ie the European Convention on Human Rights, Art 8. para 2.

57 For a discussion of the doctrinal issues raised in relation to the ordination of those openly engaged in same-sex unions. see Stanton v Righter (1996), the trial of a bishop in the Episcopal Church of the United States of America.

58 Priests (Ordination of Woman) Measure 1993 (No 2), s 1(2).

59 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank (2000) Times, 30th March, noted in Recent Ecclesiastical Cases at p 494 of this issue.

60 See generally Harte, D.. ‘Religious Education and Worship in State Schools’ in Doe, N.. Hill, M. and Ombres, R. (eds). English Canon Law (Cardiff. 1998), pp 115128.

61 As to confidentiality, see Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473, [1995] 1 WLR 804. Note also R v Brent London Borough Council, ex parte Peck (1997) Times, 18th DEcember. The European Court of Human Rights has already ruled on gender re-alignment: see Sheffield and Horsham v United Kingdom (judgment 30th July 1998).

62 See the telephone-tapping cases of Malone v United Kingdom (1985) 7 EHRR 14, E Ct HR (public phones), and Halford v United Kingdom (1997) 24 EHRR 523. E Ct HR (internal office phones).

63 Applications Nos 28851/95 and 28852/95, decision of 16th January 1998. This may be seen as an example of the horizontal effect of the Convention.

64 Coker v Diocese of Southwark [1998] ICR 140 CA, 5 Ecc LJ 68, CA. where the court decided that an assistant curate was not an employed person. For the decision of the industrial tribunal, see Coker v Diocese of Southwark [1995] ICR 563, and of the Employment Appeal Tribunal, see Diocese of Southwark v Coker [1996] ICR 896.

65 There was insufficient time for General Synod to debate the emergent Clergy Discipline Measure at its February 2000 Sessions, so it will return to the subject at York in July 2000.

66 X v Denmark (7374/76) DR 5, 157.

67 Prussner v Germany (1986) 8 EHRR 79.

68 For a discussion of these principles in an ecumenical context, see Ombres, R. Infant Baptism: The 1983 Code of Canon Law and Church of England Law (Rome, 1999), pp 126127.

69 In relation to children and their religious heritage more generally, the Court of Appeal has recently considered the placing of a child of an orthodox Jewish family with Christian foster parents (Re P (Section 91 (14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, (1999) Times, 11th May. CA); and the High Court has addressed whether a father could insist upon the circumcision of a child in the absence of agreement from the child's mother (Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678. (1999) Times, 1st June).

70 For an illustration of the ingenuity of the legal profession, see Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank (2000) Times, 30th March, discussed above.

71 The author wishes to put himself in the expectation category and avoid the fate of Lord McCluskey who, writing extra-judicially, remarked inter alia that the incorporation of the European Convention on Human Rights would provide ‘a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers’. His impartiality was considered to be compromised under Article 6. and a case on which he had sat was remitted for rehearing by a differently constituted court: Hoekstra v HM Advocate (2000) Times, 14th 04.

1 I am grateful to the Archbishops' Council of the Church of England for supporting the fellowship at the Centre for Law and Religion which has led to the production of this paper and to Fr Robert Ombres OP of Blackfriars, Oxford, for his critical comment on the content. A working draft was presented to a meeting of Southern Registrars on 18th January 2000 convened by Dr Frank Robson and I have sought to incorporate their observations herein. Such errors as remain are my own.

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