Human rights law

Human rights law

Declaratory relief

The courts have a free-standing power to grant declaratory relief concerning the proper interpretation of statutory provisions, and to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA).

This power stands independently of its jurisdiction to entertain, under section 7 of the HRA, people claiming to be victims or potential victims of violations of their convention rights.

The Court of Appeal (Lords Justice Schiemann, May and Jonathan Parker) so held in Rusbridger & Toynbee v Attorney General, 20 March 2002, where it considered whether the editor of The Guardian newspaper and one of his journalists could seek declaratory relief about the compatibility of treason legislation with convention rights.

The claimants intended to publish articles advocating establishment of a republic by peaceful means.

Before publication, they had asked the Attorney-General to confirm that neither he nor the Director of Public Prosecutions would prosecute them under section 3 of the Treason Felony Act 1848 which makes it an offence to 'entertain the intention of deposing [the sovereign] from her sovereignty in this country ...

and ...[to] manifest such an intention by any printing or in writing'.

They claimed that section 3 breached their European Convention on Human Rights right to freedom of expression (article 10) and should not be enforced.

The Attorney-General refused to give such confirmation.

The claimants published their article but have not been prosecuted.

Nonetheless, they sought judicial review of the Attorney-General's 'decision', relying on the HRA.

Section 7 of the HRA enables an individual victim to bring proceedings in respect of an act or omission by a public authority which is incompatible with convention rights.

The Administrative Court refused permission on the basis that the Attorney-General had made no decision, and that accordingly there was no act or omission by a public authority against which the claimants could bring section 7 proceedings.

Furthermore, even if the 1848 Act was incompatible, it was primary legislation and it would therefore be lawful for the Attorney-General to enforce it (see section 6(2)).

On appeal, the claimants abandoned their attempt to construct a reviewable decision.

Instead they sought declaratory relief from the court.

They argued that the offence in the 1848 Act had to be read down relying on section 3 of the HRA, which provides that statutory provisions must be read and given effect, so far as it is possible to do so, in a way which is compatible with convention rights.

It might be possible, they argued, to limit the offence to advocating the deposing of the sovereign by violent means.

If, on the other hand, it was not possible, then the court should declare the provision incompatible with article 10 by virtue of section 4 of the HRA.

The court accepted that it had discretion to give such declaratory relief in exceptional cases.

It was common ground that judicial review was, at the least, an appropriate method of seeking such relief.

While it was clear that the uncertainty of the law had not affected the claimants' decision to publish - nor had they lost sleep over the prospect of prosecution - the court recognised that there were powerful free speech arguments for clarification, and it was also in the public interest that the criminal law should be formulated in a way which enabled citizens to see what is prohibited and what is not.

The court also noted that Parliament had decided not to audit legislation for compatibility, preferring to leave the task to the courts through sections 3 and 4.

In certain cases, this might entail access to the courts before a person committed an act - such as publication - to ascertain whether it was lawful.

The court concluded that it was arguable that the 1848 Act was incompatible, even when read down by section 3 of the HRA.

It was in the interests of justice that the matter should be fully argued, and it was in the public interest that any incompatibility could be declared so that the Secretary of State for the Home Department might take remedial action under section 10 of the HRA (amendment of primary legislation by remedial order).

Therefore, the court granted permission to apply for such relief, leaving open the question whether the substantive hearing should be before the Administrative Court or the Court of Appeal.

Notice of the claim involving a possible declaration of incompatibility was given to the home secretary as the minister with departmental responsibility for the 1848 Act.

The case opens a small but useful gateway for public interest challenges to legislative provisions under the HRA.

Section 6 provides that it is unlawful for a public authority to act (or fail to act) in a manner which is incompatible with convention rights - unless irremediably incompatible primary legislation so requires it to act, or it is enforcing such legislation.

Section 7 provides that a 'victim' (or potential victim) of such an act may bring proceedings.

In this case the claimants failed in their initial challenge, framed under section 7, because they could not identify an unlawful act.

They succeeded on appeal only by abandoning that claim and substituting an appeal to the court's general jurisdiction to grant what is in effect an advisory declaration.

Judicial review was conceded to be an appropriate procedure for such a claim.

The general rules of judicial review standing will therefore apply - in appropriate cases a claim may be brought not only by a person claiming to be a victim but by anyone having a sufficient interest in the subject matter.

No doubt the court will use the permission stage to weed out cranks and busybodies, but occasionally the odd public interest challenge will be allowed where, as in this case, it would be in the interests of justice to do so.

By Stephen Grosz, Bindman & Partners, London