Macfadyen Lecture 2016

10 March 2016

“Making Rights Real: the developing role of human rights in the exercise of public law discretion”

The Hon. Dame Lowell Goddard*


[1] Thank you for inviting me to speak to you this evening. It is a great pleasure to be with you and an honour to deliver the sixth Macfadyen lecture.

[2] Although at present my energies are focused on conducting the Independent Inquiry into Child Sexual Abuse, you will be relieved to hear that I am not going to revisit the fascinating and learned lecture Lord Saville gave to this august body in 2012,i about the role of public inquiries. Although his lecture (given after he’d served ten years on the Bloody Sunday Inquiryii) has been incredibly interesting for me to read, as someone just a year into heading a major Inquiry of a very complex nature, the breadth and scope of our respective inquiries are quite different. Thus they necessitate very different approaches

[3] This evening I am not going to dwell on the subject of public inquiries except somewhat briefly in conclusion, but rather am going to draw on my experience as a High Court judge in New Zealand and now as a public servant in this country, to talk about human rights protections, and the way in which the enshrinement of international human rights norms in domestic law has impacted on the manner in which public decisions are made today.

The Modern Administrative State

[4] To understand the context in which human rights protections have come to influence public law decisions, some perspective is first necessary on how the courts have shaped and been shaped by the development of the modern administrative state.

[5] There has, in my time as a judge and over the course of all our legal careers, been a significant evolution in the public realm. The modern administrative state is a product of the last few decades only, and looks fundamentally different from the structures that governed our grandparents’ interactions with public authority. In particular, the growth of judicial review since the 1970s has responded to and informed the changing shape of the modern administrative state, recognising that, in the words of Lord Denning, the “task of doing justice as between the subject and the administrative branches of government is just as important as the task of doing justice between man and man”.iii

[6] By 1983 Lord Diplock could write that:

“[t]he extension of judicial control of the administrative process has provided over the last 30 years the most striking feature of the development of the common law in those countries of whose legal systems it provides the source."iv
Those recalibrations of the common law have continued beyond the 1980s, buoyed by a growing recognition of the importance of the rule of law to society. As we are all well aware, the courts have played a leading role in this exercise.

[7] That role has been informed by a recognition that the “object” of the common law “is to maintain the rule of law”.v Pursuit of this object explains the incremental development of the common law to protect human rights.

[8] For Baroness Hale, the rule of law requires an independent judiciary ensuring that decisions are taken in accordance with I doubt many if any people in a free and democratic society would disagree with that definition. But in addition, and as Jeremy Waldron has explained, the rule of law can also be seen to place requirements on the ordinary citizen:

“Usually one thinks of the rule of law as a requirement placed on governments: the government must exercise its power through the application of general rules; it must make those rules public; it must limit the discretion of its officials; it must not impose penalties on people without due process; and so on. But the rule of law applies to the individual, too. So, what does the rule of law require of the ordinary citizen? Well, it requires that she obey the laws that apply to her. She should be alert to changes in the law; she should arrange for her legal advisors to keep her informed of her legal obligations; she should refrain from taking the law into her own hands; and she should not act in any way that impedes, harms, or undermines the operation of the legal system.”vii

[9] Waldron’s point is an important one. The recognition that individuals are not only the holders of rights, but must also obey the laws that apply to them, points to a need to reconcile individual human rights protections with other legal rights and responsibilities. Lord Sumption made a similar point in the 27th Sultan Azlan Shah Lecture, where he observed that the “existence and extent” of human rights protections “must be constrained to a greater or lesser extent by the rights of others, as well as by some legitimate collective interests”.viii

[10] Conceptually, this is not a novel proposition. The courts have long been “reconciling” laws that appear to pull in opposite directions, and a number of judicial techniques have been developed over the years to do just that. One is the maxim that a general provision does not derogate from a special one (generalia specialibus non derogant). Another is the maxim that later laws abrogate earlier contrary laws (leges posteriors priores contrarium abrogant).

Accommodating the Rights “Revolution”

[11] In a similar way, consideration by decision-makers of human rights protections is not novel. Long before the enactment of modern bills of rights, courts had established that statutes were to be interpreted and applied in light of rights of a constitutional nature recognised by the common law.ix What has changed in the last two decades in particular is how commonplace the need to “reconcile” human rights protections with other laws has become — at least in part because of the codification of human rights norms. That occurred first at the international level,x and then at the regional and domestic levels, the latter including the enactment of statutory bills of rights such as the New Zealand’s Bill of Rights Act in 1990xi and the UK’s Human Rights Act in 1998.xii

[12] The domestic reception of international human rights has precipitated a cultural change that has permeated public life. Over the latter half of the 20th century and these first 15 years of the 21st century, human rights principles have transformed public law, reconfiguring it so that civil and political rights and freedoms are at its core.xiii In some areas of the law, the equitable doctrine of breach of confidence being one, this has necessitated a reformulation of judge-made law by the courts taking “a broadly horizontalist approach” on account of their section 6xiv obligation not to act in a manner incompatible with Convention rights.xv Even areas as seemingly distant from human rights, such as taxation, are now susceptible to challenge on human rights grounds.xvi

[13] Tonight, I want to explore how the recognition of human rights protections has influenced and circumscribed the exercise of decision makers’ discretion, and whether that has had the practical effect of “Making Rights Real”. It is a basic principle of public law, succinctly summarised by Lord Diplock in the famous GCHQ casexvii that, “the decision maker must understand correctly the law that regulates his decision making power and must give effect to it”xviii. So, as the law has expanded to include the recognition and protection of human rights, how has that affected the regulation of decision-making powers?

[14] The jurisdictions that I will look to this evening — the UK, New Zealand, and Canada — have different stories to tell about the evolving places and functions of human rights protections in their legal and political spheres. As long ago as 1960, Canada introduced its Bill of Rights,xix and its constitutional Charter of Rights and Freedomsxx came into force in 1982. The UK was a founding member of the European Convention in 1953,xxi but citizens first acquired the right of individual petition to Strasbourg in 1966. Domestic human rights protections under the Human Rights Actxxii finally came into force in 2000. New Zealand’s establishment of directly enforceable human rights protections developed somewhere in the middle of this timeline, culminating with the enactment of the Bill of Rights Act in 1990.xxiii

[15] The constitutional status of the three pieces of legislation differs across the jurisdictions.xxiv There are also important differences in the political and constitutional cultures of the three jurisdictions, as Sir Geoffrey Palmer QC, father of the 1990 New Zealand Bill of Rights Act,xxv has noted.xxvi Sir Geoffrey is particularly critical of what he sees as a relatively conservative approach by New Zealand’s courts in applying the Bill of Rights Act, in contrast to that of the UK courts under the Human Rights Act.xxvii Quoting Sir Geoffrey: “In some respects the Courts in the United Kingdom have been bolder in interpreting their Act than their New Zealand counterparts have been in dealing with ours”.xxviii This difference in approach might have its genesis in, and in part be explained by the fact that the New Zealand Law Society made strong submissions against a Bill of Rights for New Zealand,xxix notably attacking the original Bill of Rights proposals as a breach of Diceyan orthodoxy!xxx

[16] Notwithstanding the different political and constitutional cultures in which they are embedded, the human rights statutes in the three jurisdictions all interact broadly with the exercise of discretion by public decision makers — whether that discretion is conferred by statute, guidance or the common law.

[17] The question of how human rights interact with and inform discretionary decisions is obviously crucial for ensuring that decision makers at all levels are making lawful decisions. That will be as true of the Government Minister as it is of the local planning officer and even of an Inquiry Chair. All public structures in which public officials are operating will be susceptible to human rights challenges, so will need to have a clear idea of the human rights obligations attendant on them to discharge their functions lawfully.

[18] Those obligations may be procedural or substantive, in that they might mandate a particular decision making process, or might concentrate on a particular outcome, possibly without worrying too much about how that outcome was reached. In different contexts, the part played by human rights considerations will change — an observation which is borne out by the lack of any consistent approach across and even within the common law jurisdictions. Courts and commentators have mooted various different approaches, each of which casts some light on the way in which human rights may interact with and circumscribe the exercise of public law discretion.

Human Rights Protections are Irrelevant

[19] The first possibility is that human rights are irrelevant to the exercise of public law discretion, at least in the sense of influencing the particular decision to be made.xxxi On this approach the conferring statute alone rules the roost, because expressly or by necessary implication it mandates a decision that contravenes a human rights protection. Lord Hoffman spoke of this potential in R v Secretary of State for the Home Department ex parte Simms: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal.”xxxii

[20] The same position applies in New Zealand. Quoting a leading commentary:

“… if the statute can be read to positively authorise an infringing application, then the application cannot be unlawful under the Bill of Rights because that would be to deny effect to the statute and is precluded by s. 4 [of the Bill of Rights, which provides that no court shall hold any provision of an enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective, or decline to apply it, by reason only that the provision is inconsistent with any right protected in the Bill of Rights]”.xxxiii

[21] This irrelevancy of human rights finds conceptual support in Ronald Dworkin’s famous treatise, Taking Rights Seriously.xxxiv It described discretion as “the hole in a doughnut” — “an area left open by a surrounding belt of restriction”.xxxv By this conception, human rights might form part of the dough that surrounds the hole in the middle, but are irrelevant (and therefore have no practical impact) for decision makers operating within the hole. As de Smith has stated:

“[The] legal concept of discretion implies power to make a choice between alternative courses of action. If only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty.”xxxvi

[22] So, if fundamental rights considerations forced a decision maker down a particular path, their discretion would be fettered and, as we know, fettering discretion is a basis of unlawfulness. At least, so the argument goes.

Human Rights Protections are Relevant

[23] But to dismiss fundamental rights as unlawful fetters on the exercise of public law discretion is not the mainstream view — and in practice it is a situation that tends to be the exception rather than the rule. Most commentators agree that human rights instruments direct legal standards not only at the courts but also at primary decision makers, meaning that human rights should be within the “doughnut hole”xxxvii and relevant to the exercise of public law discretion: either as a permissive consideration (in that fundamental rights can be considered, but do not always need to be), or as a mandatory consideration.

[24] Indeed, that had been the developing jurisprudence in the UK even prior to the introduction of the Human Rights Act.xxxviii In R v Secretary of State for the Home Department ex parte Pierson the House of Lords held that:

“A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”xxxix

[25] That was made all the more explicit by the passage of the Human Rights Act.xl Section 6 of the Act makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right”.xli That certainly suggests that, in the UK at least, fundamental rights will tend to be a relevant consideration — and indeed courts in the UK have routinely found that to be so. New Zealand’s position is similar. The country’s Bill of Rights Actxlii provides in section 6 that “wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”.xliii The courts in New Zealand have held that this influences both the interpretation and the application of statutory discretionxliv although, as noted earlier, there is debate in New Zealand about whether the courts have gone far enough in integrating the Bill of Rights Act into public law, and in particular whether the Bill of Rights Act can be woven into civil law in the same relatively extensive way it has been woven into criminal law.xlv

Weaving Rights into the Fabric of Discretion

[26] Where the courts have oscillated — in the UK, in New Zealand and also in Canada — is on how, practically, human rights protections are to be recognised and provided for in the exercise of public law discretion. Some authorities illustrate a degree of “creativity” in finding ways to accommodate human rights, although this is not unique to human rights law. As I noted earlier, the courts developed and frequently applied techniques to reconcile “competing” laws long before the enactment of the modern statutory bills of rights. The extension of techniques developed in other contexts to human rights adjudication can be seen to be consistent with what Sir John Laws described in his ICLR Lecture “Our Lady of the Common Lawxlvi as the “alchemy of the common law”,xlvii involving taking the “seeds of principle”xlviii from one authority to the next.

[27] Three cases, one each from New Zealand, the UK and Canada, provide examples of the use of “reconciliation” techniques the courts have used to give effect to human rights protections in the exercise of public law discretion. The first is the decision of the New Zealand Court of Appeal in R v Laugalisxlix (1993) 1 HRNZ 446. There the police had conducted a warrant-less search under a statutory power permitting such a search. The court held that — in light of the right to be secure against unreasonable search or seizure in section 21 of the Bill of Rights Actl — the statutory power could only be used where there was urgency or some other consideration which justified a warrantless search, rather than the normal search warrant procedure. As no such restriction appeared in the statutory power itself, this is an example of “reading down” the application of a statutory power to ensure that human rights were appropriately protected.

[28] In a similar vein, the House of Lords in R v Ali “read words in” to ensure human rights protection. The question for the House was whether the right to a fair trial in Article 6lii was accommodated by a statute restricting the right of accused persons to cross-examine rape complainants about their sexual history. The statute prohibited cross-examination subject to three narrow exceptions. Three members of the House accepted, however, that the right of an accused to a fair trial might well require cross-examination in cases falling outside of the three exceptions. Their interpretive solution, invoking the Human Rights Act,liii was to read into the statute a residual judicial discretion to allow cross-examination. As commentators have noted:

“Significantly, the fact that the legislature had enacted three specific exceptions but no others was not taken to oust the implication of a broader residual power. The legislature’s intent was, instead, put on a higher level of generality. As put by Lord Steyn, it was “realistic to proceed on the basis that the legislature would not have wished to deny the right to a fair trial”. On that premise, R v A was not a case of using s. 3 of the Human Rights Act to make an enactment mean something it was not intended to mean. It was a case of reading in extra words to affirm Parliament’s imputed intention of legislating consistently with the right to a fair trial. Such an interpretation being ‘possible’, s. 3 required that it be made.”liv

[29] R v Sharpelv [2001] 1 SCR 45, a decision of the Supreme Court of Canada, is to similar effect. The case concerned the crime of illegal child pornography. The statutory definition of that crime criminalised some expression that was held by the Court to be constitutionally protected under section 2(b) of Canada’s Charter of Rights,lvi which protects freedom of expression. The Court’s solution was to treat the statute as if it contained implied exceptions so as to avoid the criminalisation of the constitutionally protected forms of expression. Again:

“It was not a question of construing any particular words in the enactment: as with R v A the result turned entirely on ‘reading in’, this time by reading in fresh exceptions rather than a further power. This, it was said, preserved the intended force of the statute while recognising the purposes of the Charter.”lvii

[30] If it goes without saying that administrative decision makers must act consistently with the values underlying the grant of discretion, including human rights values, and that they can in appropriate cases “read down” powers or “read in” exceptions to their exercise, the question becomes — to quote from Abella J’s judgment for the Supreme Court of Canada in Doré — “what framework should be used to scrutinize how those values were applied?”lviii

[31] Justice Abella considered a number of earlier Canadian decisions that had answered the question in a range of different ways, before concluding that: