Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights.
Date:
2004
Catalogue details

Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

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    reconcile with the notion of separation of powers between the executive and the judiciary”.” And in Sovtransavto Holding v Ukraine, the Court held that there had been a breach of the fair trial guarantee in Article 6(1) where there had been interventions in the judicial process at the highest political level:'* such interventions were said to disclose a lack of respect for the very function of the judiciary. Domestic law under the Human Rights Act 1998 1.25 Some witnesses to the House of Lords Select Committee on the Bill questioned whether Article 6 introduced anything new into UK law when it was given direct domestic effect by the Human Rights Act 1998. Edward Garnier QC MP, for example, told the Select Committee that “the principle enshrined in Article 6 has been fundamental to English law for centuries. ... This is not some new principle which entered our law for the first time with the Human Rights Act 1998. ... It is inaccurate for the Government to say that the Human Rights Act requires a stricter view to be taken towards independence or impartiality”.”” 1.26 It is true that the right of an individual to a tribunal which is “independent and impartial” was recognised by the common law in various ways long before the enactment of the Human Rights Act made Article 6 ECHR part of UK law. But the Government is also correct to say that the Human Rights Act requires a stricter view to be taken towards independence and impartiality. Indeed, this has been expressly recognised in decisions of the Court of Appeal and House of Lords following the coming into force of the Act. 1.27 The Court of Appeal in the Proprietary Association case conducted a thorough review and restatement of the precise test to be applied in determining whether a court or tribunal meets the guarantee of impartiality, in light of the coming into force of the Human Rights Act 1998 and the consequent domestic effect of the Article 6(1) jurisprudence of the European Court of Human Rights.” The Court noted that the common law test for bias laid down by the House of Lords in Gough (which had become known as the ‘real danger of bias’ test)*’ had not commanded universal approval outside of England and Wales, and that Scotland and some Commonwealth jurisdictions had preferred an alternative test (the ‘reasonable apprehension of bias’ test) which was said to be more clearly in harmony with the jurisprudence of the European Court of Human Rights. 1.28 Since this was the first occasion on which the question had arisen since the coming into force of the Human Rights Act 1998 on 2 October 2000, the Court of Appeal treated the case as an occasion to review Gough to see whether the test it lays down was compatible with the Strasbourg test, or needed some modification. It therefore proceeded to conduct a 17 (2002) 13 BHRC 260 at para. 78. The House of Lords in R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 subsequently held that the Executive should play no part in the sentencing of prisoners, because the rule of law depends on the complete functional separation of the judiciary from the executive. 18 (2004) 38 EHRR 44 19 Select Committee on the Constitutional Reform Bill [HL], op cit., Ev 358-9 20 Proprietary Association of Great Britain v Director General of Fair Trading [2001] 1 WLR 700 21 [1993] AC 646 at 670 (Lord Goff)