Ipsofactoj.com: International Cases [2003] Part 10 Case 5 [HL]


HOUSE OF LORDS

Coram

Northern Ireland

Human Rights Commission

- vs -

Her Majesty's Coroner

LORD SLYNN OF HADLEY

LORD WOOLF

LORD NOLAN

LORD HUTTON

LORD HOBHOUSE OF WOODBOROUGH

20 JUNE 2002


Judgment

Lord Slynn of Hadley

My Lords,

  1. This appeal raises an important question as to the capacity and functions of the Northern Ireland Human Rights Commission set up by section 68 of the Northern Ireland Act 1998 ("the 1998 Act").

  2. The question arises out of an inquest held by Her Majesty's Coroner for the district of Fermanagh and Tyrone into the deaths of victims of the bomb explosion in Omagh on 15 August 1998. Two matters became relevant. The first was whether the Coroner should order pre-inquest disclosure. The Coroner by letter dated 16 August 2000 asked whether the Commission wished to make a formal submission on human rights issues connected with that matter. The Commission prepared a skeleton argument on that and was represented by counsel at a hearing on 6 September 2000. Following representations on behalf of the next of kin, the Coroner exercised his discretion to order pre-trial discovery and so he did not call on the Commission.

  3. The second matter concerned the scope of the inquest's remit. On 12 September the Commission wrote to the Coroner stating that in the opinion of the Commission "there may be human rights principles arising in respect of these matters on which it would be appropriate for the Commission to make submissions".

  4. In the meantime the Coroner had told the Commission that the latter would be provided with transcripts since he was "satisfied" that the Commission's status equated "to that of a properly interested person". The Commission noticed that in the only skeleton argument prepared on behalf of some of the relatives there was no consideration of applicable human rights standards. Following correspondence and oral submissions as to whether the Commission had power to intervene, the Coroner on 27 September 2000 ruled that the Commission had no statutory power to intervene and that accordingly he could not permit it to intervene.

  5. The Commission challenged the Coroner's decision pursuant to Order 53 Rule 3 (2)(a) of the Rules of the Supreme Court (Northern Ireland) 1980, asking for a declaration that the Coroner's decision (to the effect that the Commission had no power or standing to intervene in proceedings so that it could not be permitted to intervene at the inquest) was wrong in law. It was contended on behalf of the Commission that (a) the Commission could apply to intervene and (b) that the Court could permit the Commission to intervene for the purpose of making submissions and representations concerning human rights.

  6. Sir Robert Carswell LCJ on 8 December 2000 considered that he was impelled to uphold the Coroner's ruling and he refused to make the declarations sought. The Court of Appeal by a majority (McCollum LJ and Sir John MacDermott, Kerr J dissenting) dismissed the Commission's appeal ([2001] NI 271).

  7. The Lord Chief Justice had agreed to hear the matter even though the Coroner's inquest had gone ahead whilst the proceedings for judicial review were on foot and at a time when no substantive relief could be granted; the Court of Appeal agreed and in my view the Lord Chief Justice was plainly right to take this course.

  8. The argument has focused on the provisions of the 1998 Act, the long title of which is "to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883".

  9. Section 68 of the Act provided for the creation of the Commission. This was to take the place of the Standing Advisory Commission on Human Rights which was constituted under the Northern Ireland Constitution Act 1973 and whose functions were those of advising and informing the Secretary of State as to the adequacy and effectiveness of the law in preventing discrimination on the ground of religious belief or political opinion and certain related matters.

  10. The powers of the Commission are on any view far more extensive than those of the Standing Advisory Commission. In the first place there is an overarching duty to "keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights" (section 69(1)). To that end the Commission is within two years to make recommendations to the Secretary of State as to improving the Commission's effectiveness and as to the adequacy and effectiveness of its functions (section 69(2)). It is required to advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights either when asked to advise or on its own initiative (section 69(3)). It is empowered to advise the Assembly whether a Bill is compatible with human rights (section 69(4)) to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement (section 69(7)). It has an obligation to "promote understanding and awareness of the importance of human rights in Northern Ireland" (section 69(6)) and for that purpose it can provide assistance for research and educational activities. More specifically in relation to the courts the Commission is empowered by subsection (5)(a) of section 69 to give assistance to individuals in accordance with section 70 where proceedings involving the law and practice relating to human rights in Northern Ireland are involved, and where the Commission considers that a question of principle is involved or where there are special circumstances in which the Commission thinks it appropriate to provide assistance. Such assistance may take the form of legal advice, representation or any other assistance.

  11. Even closer to the question now raised is the provision in subsection (5)(b) that the Commission may "bring proceedings involving law or practice relating to the protection of human rights" though that provision does not enable proceedings to be brought on the ground that legislation or an act is incompatible with a Convention right unless the Commission would be a "victim" for the purpose of proceedings brought in the European Court of Human Rights.

  12. Since the Act is "for the purpose of implementing" the Belfast Agreement it is relevant to note the emphasis on the "protection and vindication of the human rights of all" in para. 2 of the Declaration of Support in the Agreement. There will, by para. 5 of Strand One of the Agreement, be safeguards to ensure that all sections of the community are protected, including (b) the European Convention on Human Rights and any Bill of Rights for Northern Ireland supplementing it, which neither the Assembly nor public bodies can infringe, together with a Human Rights Commission.

  13. By paragraph 5 of the section in Strand Three dealing with "New Institutions in Northern Ireland" (page 17) it is provided that the Commission will be established with an extended and enhanced role beyond that of the Standing Advisory Commission including

    keeping under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so.

  14. The Lord Chief Justice accepted that a Coroner had power in principle to permit a person to intervene in an appropriate case and to ask for the assistance of an amicus curiae though the position of the intervener and the amicus had to be distinguished. He was not satisfied that under the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (rule 7) the Commission could properly be regarded as having a status which "equates to that of a properly interested person" with the power to examine witnesses. His view was that as a statutory body the Commission

    has only the powers conferred by statute upon it, which will include such powers as may fairly [be] regarded as incidental to or consequential upon those things which the legislature has authorised: cf Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478, per Lord Selborne L.C.; Wade & Forsyth, Administrative Law 7th Ed. p.219. In order fairly to be regarded as incidental, those powers, if not expressly conferred, must be derived by reasonable implication from the provisions of the legislation: Baroness Wenlock v River Dee Co (1885) 10 App. Cas 354 at 362-3, per Lord Watson; and cf. Lord Macnaghten's remarks in Amalgamated Society of Railway Servants v Osborne [1910] AC 87 at 97.

  15. Even with as broad and sympathetic construction as they would reasonably bear, the Lord Chief Justice was unable to find "anything in the section which confers powers on the Commission to make submissions to courts and tribunals about the content of the law relating to human rights or its application to a particular case." (p.10). He considered that none of the specific provisions of section 69 could be read so as to include such an implied power. In particular subsection (6) concerned with the promotion of understanding and awareness of the importance of human rights was "a proselytising function" and not an advocacy function like the role of an intervener or the non-partisan advisory function of the amicus. He had been asked to have regard to statements in Parliament, but though having doubts as to whether it was permissible to look at these following Pepper (Inspector of Taxes) v Hart [1993] AC 593 he did not consider that they threw any light on the question whether the Commission had a statutory power to make submissions to the Court if permitted to do so.

  16. In the Court of Appeal McCollum L.J. whilst accepting that it was right not to interpret the 1998 Act narrowly or restrictively ruled that "the provisions of the Act investing powers in the Commission must be looked at in the light of the stated objectives of the Act and in sympathy with its general import, but that does not enable a court to read something into the provisions which has not been enacted or to add to them at will". To allow the Commission to intervene in proceedings in which it had no direct interest as a party had one of two objectives. "Either it is not calculated to affect the outcome, in which case it is irrelevant, or it is calculated to affect the outcome, in which case a number of potentially undesirable results may ensue".

  17. Thus, the public perception might be that the court was influenced by a government agency not a party to the proceedings. Costs would be increased. The party against whose stance the Commission argued would feel aggrieved by the inequality of arms. Moreover it was undesirable that the Commission should be involved in controversy in the course of a case to which it was not a party. "The concept of human rights itself and the interpretation of the Human Rights Convention or the Human Rights Act 1998 are not matters which should give a great deal of difficulty to a court." (2001 NI 272 at p.282).

  18. He considered that the Commission would not be likely to have the necessary disinterested quality that one seeks in an amicus curiae. The principal ground for his decision was, however, that none of the specific provisions could be read as impliedly giving a right to intervene or to appear as an amicus. If Parliament had intended such a power it would have said so expressly. Other statutes where intervention had been permitted were distinguishable in that they contained a wider general power than the specific powers given under section 69 of the 1998 Act — e.g. R v DPP ex parte Duckenfield [1999] 2 All ER 873 (section 6(1) of the Police Act 1996 and section 111(1) of the Local Government Act 1972); and Re F (Mental Patient: Sterilisation) [1999] 2 AC 1 and R v Bournewood Community & Mental Health NHS Trust, ex parte L [1999] 1 AC 458 under section 120 of the Mental Health Act 1983.

  19. Sir John MacDermott agreed with the reasoning of McCollum L.J. He found it significant that the Commission had not been given the powers of the Equal Opportunities Commission which the House had held gave it the right to intervene (Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1). The Belfast Agreement did not indicate that such a power was intended and it was significant that section 69(5) and para. 5 of the Agreement referred only to "bringing .... proceedings". Although interested bodies increasingly had been allowed to make submissions "it seems to me however that though a court should feel free to seek assistance in whatever manner and from whoever has the appropriate expertise that fact cannot of itself create in statutory bodies the right to respond". He thought in any event that the fact that the Attorney General could also be asked to appoint an amicus (semble other than the Commission) would avoid any difficulties which the court might face. It was for him significant that the Republic of Ireland had expressly granted the power to appear as an amicus whereas nothing had been said in the 1998 Act.

  20. I recognise the force of the reasoning of these three judgments and of the objections to the Commission's having the power to intervene which are raised by my noble and learned friend Lord Hobhouse of Woodborough. It has to be accepted that neither in the Belfast Agreement nor in the 1998 Act is there an express provision that the Commission may intervene in proceedings or appear as an amicus curiae even when human rights issues are under discussion. It is also clear that a statutory body usually has only the powers conferred on it by statute and I am prepared in this appeal to assume that such a rule applies even to a body with special powers and duties like the Commission. Such powers can however equally clearly include such powers as may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised. Attorney-General v Great Eastern Railway Co (supra). I accept that there will be statutes in which the express powers in a particular context are drawn so tightly that it would be wrong to read in other powers which could easily have been expressly included and where the proper inference is that they were deliberately left out. I also agree with Sir John MacDermott that one should not begin with the assumption that because "the Commission should have such a power it must have it and the statutory provisions must be read accordingly" (p.299).

  21. The Lord Chief Justice (followed by the majority in the Court of Appeal) examined literally and in detail the provisions of the subsections of section 69. He found that the duty under subsection (1) to "keep under review the adequacy and effectiveness of law and practice relating to the protection of human rights" could not of itself give a power to address submissions to a court. I agree that it does not expressly say so. It does, however, indicate the importance of the Commission in developing such law and practice. The organ most concerned with the interpretation and enforcement of human rights law and practice once incorporated by statute is the court. Submissions by the Commission as to how the human rights law should be interpreted and applied so as to be adequate and effective show how relevant is the work of the Commission to that of the courts.

  22. Sub-sections (2), (3) and (4) lay down the duty to give the Secretary of State and the Assembly advice and I agree with the Lord Chief Justice that in themselves they do nothing directly to support the Commission's case.

  23. It has to be accepted that Sub-section (5)(a) in itself is limited to giving financial and other assistance to individuals in accordance with section 70. Moreover Sub-section (5)(b) refers to "bring[ing] proceedings" which as the Lord Chief Justice said is not apposite to an inquisitorial inquest before a Coroner. Both Sub-sections however indicate a role for the Commission in connection with court proceedings even though in respect of proceedings in which it is sought to contend that legislation is incompatible with the European Human Rights Convention they can only be brought, it seems, if the Commission can show that it is a victim for the purposes of the Convention. These provisions, even though do not expressly confer the power to intervene do not, it seems to me, rule out the possibility of the Commission having a role in court proceedings as intervener or as amicus if such role is incidental to express powers which are given.

  24. The Commission has relied most strongly on sub-section (6) (to "promote [understanding] and [awareness of the importance] of human rights in Northern Ireland"). I have put these two parts of the provision in square brackets because it seems to me they must be read disjunctively. Again read literally they do not express a right to intervene or to appear as amicus. I do not, however, agree that this is, as the Lord Chief Justice accepted, merely a "proselytising function" which is inapplicable in courts which are assumed to know that human rights are important. Whether as amicus curiae, keeping within the limits of a non-partisan view of the particular case, or advocating as intervener where there is a danger that an important principle of law favouring one party or the other has not been brought to the attention of the court, the Commission would have the possibility of promoting understanding by the courts of human rights law. Courts can gain much from such interventions as the House did in R v Kansal (No 2) [2001] 3 WLR 1562 even if the arguments in the end were not accepted. Thus whilst recognising that this gives no express right it seems to me to be a strong pointer to a function incidental to the Commission's primary duty or power.

  25. Accordingly I agree with Kerr J. that the combination of subsections 69(1), (5), (6) and (8) indicate the conferring on the Commission of general powers to promote the understanding of human rights law and practice and to review its adequacy and effectiveness. The capacity to make (not a power to insist on making) submissions to the court are incidental to this general power. The fact that the question is concerned with capacity rather than power in my view is important. The final decision lies with the court which can allow or refuse the Commission's application to intervene, invite or not ask for help from the Commission as amicus curiae. The provision that the Commission shall promote understanding of human rights law has thus to be read in this context subject to the court's control of its procedure. If the court wants or is willing to have such submissions the Commission has the capacity to make them as part of the function of promoting the understanding of human rights law, particularly if reference has to be made to some of the many decisions of the European Court of Human Rights. I am not troubled by the floodgates argument. The Commission must exercise caution in deciding whether a case is important enough to justify intervention or assistance; and whether there is a risk of particular parties or one party feeling that it is unfair that the Commission should come down on one side rather than the other in the legal argument. It is in the end for the court to decide these matters. The courts will only allow or invite assistance when they feel it necessary or helpful; with increasing knowledge particularly of cases in the European Court of Human Rights they may find it less necessary but this capacity to give assistance to the court is potentially valuable in achieving the purpose of the legislation In my view the existence of that capacity is reasonably incidental to its main express powers.

  26. I have not found it necessary to refer to the extracts from Hansard in order to resolve the question on this appeal. I do not however see that the Government's position in what is said there is inconsistent with my conclusions. Mr. McNamara MP's amendment to the Clause which was later section 69 of the Act, would have avoided, at any rate in part, the issue in this appeal since it would have said expressly that with the leave of the court the Commission could submit an opinion as amicus curiae. One reason he gave was that that "would enable it more effectively to carry out the advisory and educational functions envisaged in the Agreement" (Hansard 27 July 1998 Col. 78). The Minister Mr. Paul Murphy MP both on that occasion and on 18 November expressed the Government's view. On 18 November 1998 he said

    Courts will be free to ask the Commission to provide assistance as amicus under the normal rules that apply. However, that is not a matter for the Bill, but for the court in individual cases.

    (Hansard 18 November 1998, Col. 1061).

    In the House of Lords the Lord Chancellor said

    The European Court of Human Rights rules of procedure allow non-parties such as national and international non-governmental organisations to make written submissions in the form of a brief. There is no reason why any change to primary legislation in this [Act] is needed to allow the domestic courts to develop a similar practice in human rights cases.

    …[Section 7(1)(b)] does not touch a third party who has not ex hypothesi been the victim of the infringement of a Convention right. It in no way precludes a third party from making submissions about the implication of Convention rights in written briefs if a written brief is invited or accepted by the court, as I believe will happen.

    (Hansard 24 Nov. 1997 Cols. 832-4)

  27. It is contended that these passages are only dealing with the power of the court to permit or invite an intervention or an amicus brief. They do not explore the question of whether the Commission has the capacity to appear which is a prior question to that whether the court should give leave. This seems to me to be right; both Ministers assume capacity. That was however in my view a correct assumption. I do not read the reference to briefs from "non-governmental organisations" in the Lord Chancellor's speech as intending to exclude bodies like the Commission which are set up by Parliament; non-Governmental organisations were an example of the non-parties who might be allowed or asked to assist the court. In any case the position of the Commission is "not [to] be regarded as the servant or agent of the Crown or as enjoying any status immunity or privilege of the Crown" (Schedule 7 to the 1998 Act). On any view I do not see how the passages from Hansard can be said to assist the respondent's argument in this case to the extent that it seeks to rely on them.

  28. I would accordingly allow the appeal and declare

    1. that the Commission has the capacity to make submissions on human rights law and practice applicable in Northern Ireland if so permitted or invited by courts or tribunals concerned with issues of such law and practice;

    2. that in particular the Commission may with such permission or by invitation appear to make submissions on relevant issues of human rights law and practice at inquests conducted by Her Majesty's Coroners in Northern Ireland.

    Lord Woolf

    My Lords,

  29. For the reasons set out in the speeches of Lord Slynn of Hadley, Lord Nolan and Lord Hutton, I agree that this appeal has to be allowed and that the order which is proposed by Lord Slynn should be made. I am, however, acutely conscious that together with the majority of your Lordships I am disagreeing with the views of Lord Hobhouse of Woodborough, the Lord Chief Justice of Northern Ireland and the majority of the Court of Appeal in Northern Ireland. Furthermore we are doing so as to the interpretation of the Northern Ireland Act 1998, which was enacted in particularly sensitive political circumstances, in relation to the powers of the Northern Ireland Human Rights Commission. I therefore propose to set out shortly my reasons for coming to the same conclusion as the majority of your Lordships.

  30. If the Commission has the power to intervene in legal proceedings, then it is common ground that this is not a power expressly conferred by the 1998 Act. The issue is whether the Commission has an implicit power to intervene. I suppose it is right to regard this as an issue of interpretation. However, it is not an issue which involves deciding what is the true effect of statutory provisions which are obscure as to their meaning. The language of the sections (primarily section 69) of the 1998 Act with which we are concerned is perfectly clear. The task involves deciding whether in view of the express powers clearly conferred on the Commission it is right to conclude that the Commission has an implicit power to intervene in legal proceedings if the court conducting the proceedings agrees that it should do so. As Lord Slynn and Lord Hutton both point out, the answer to the issue depends on whether the power can be fairly regarded as incidental to or consequential upon the powers which the legislature has expressly conferred.  

  31. Deciding whether the power to intervene in legal proceedings is to be regarded as incidental or consequential involves, not only considering individually each of the possibly relevant express powers, it also involves considering those powers as a whole. In addition it is necessary to identify the purposes for which this body was established by the legislature. The task was correctly approached by Kerr J in his dissenting judgment in the Court of Appeal. Having asked himself the right question he came to the conclusion that the general nature of the Commission's role included the promotion of human rights and that the power to intervene when permitted to do so in legal proceedings was an implicit part of that role.

  32. The practice of allowing third persons to intervene in proceedings brought by and against other persons which do not directly involve the person seeking to intervene has become more common in recent years but it is still a relatively a rare event. The intervention is always subject to the control of the court and whether the third person is allowed by the court to intervene is usually dependent upon the court's judgment as to whether the interests of justice will be promoted by allowing the intervention. Frequently the answer will depend upon whether the intervention will assist the court itself to perform the role upon which it is engaged. The court has always to balance the benefits which are to be derived from the intervention as against the inconvenience, delay and expense which an intervention by a third person can cause to the existing parties.

  33. While it is common to confer an express power on a body such as the Commission to bring proceedings I would find it surprising if an express power to exercise this novel role of intervening should be conferred. However, I would find it extraordinary if a body having the express powers of the Commission did not have the ability to intervene.

  34. The successful introduction of human rights into the domestic law of the United Kingdom is substantially dependent upon the courts giving proper effect to those rights. This is a challenging and difficult new undertaking for the courts. The Commission should be in a position to give substantial assistance to enable the courts to fully appreciate what is involved in properly applying human rights in the litigation which comes before them. I find it hard to believe that it could have been the intention of Parliament that the Commission should not be in a position to proffer assistance when the court wishes to have that assistance. The Commission's express power to bring proceedings itself in section 69(5)(b) is as to issues "involving law or practice relating to the protection of human rights". The Commission also has been granted an extensive power to provide assistance to others in relation to legal proceedings in cases raising questions of a principle as to human rights (section 70(2)).

  35. Bearing in mind these greater powers I regard it inevitable that the more limited power to intervene should be regarded as implicit. While I agree with Lord Hobhouse that it is important to have fully in mind the sensitive background to the passing of the 1998 Act, the existence of this restricted power to intervene, the exercise of which will be carefully controlled by the courts, should not be of any "political" significance.

  36. If a power to intervene exists then the nature of the tribunal does not affect the existence of the power. Nothing in my judgment turns on the fact that we are here concerned with a possible intervention in an inquest. The limits on the power are in the hands of the courts before whom the Commission wishes to appear. The courts will be well able to ensure that the implicit power, which I am satisfied exists, is not abused.

    Lord Nolan

    My Lords,

  37. I agree with the views expressed by my noble and learned friend Lord Slynn of Hadley. In my judgment his reasoning is additionally supported by the terms of subsection (9) of section 69 of the 1998 Act, which is ancillary to subsection (8). The subsections provide as follows:

    (8)

    For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.

    (9)

    The Commission may decide to publish its advice and the outcome of its research and investigations.

  38. The functions of the Commission to which subsection (8) refers include, of course, under subsection (1) the keeping under review of the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights, and, under subsection (6), the promotion of understanding and awareness of the importance of human rights in Northern Ireland as well as the functions more closely concerned with the courts to which Lord Slynn has referred. With great respect to the contrary opinion of the Lord Chief Justice and the majority of the Court of Appeal, I am unable to accept that Parliament would have authorised the Commission to publish the outcome of its investigations into such matters without intending that the Commission should have the capacity to present its conclusions directly to the courts if so requested. Conversely, I cannot accept that a court, wishing to know the views of the Commission about the human rights implications of the case before it, and to allow the parties to question those views, was intended by Parliament to be denied the power of inviting the Commission to be represented, and to be left to rely upon such help as it could get from the Commission's published reports. It may well be that the power would rarely be exercised, but its existence, and the corresponding capacity of the Commission to respond, seem to me to be established by reasonable implication from the express provisions of section 69(8) and (9), as well as being incidental to the other provisions of the section.

  39. It follows that I too would allow the appeal. I concur in the order proposed.

    Lord Hutton

    My Lords,

  40. The issue which arises on this appeal is whether the Northern Ireland Human Rights Commission ("the Commission"), which is a body corporate created by statute, has power to intervene in a coroner's inquest to make submissions on human rights issues which arise in the proceedings of the inquest.

  41. Paragraph 5 of the Section headed "Rights, Safeguards and Equality of Opportunity" in Strand Three of the Belfast Agreement provides:

    A new Northern Ireland Human Rights Commission, with membership from Northern Ireland reflecting the community balance, ill be established by Westminster legislation, independent of Government, with an extended and enhanced role beyond that currently exercised by the Standing Advisory Commission on Human Rights, to include keeping under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so.

  42. Pursuant to this paragraph of the Agreement the Commission was created by section 68 of the Northern Ireland Act 1968 which provides:

    (1)

    There shall be a body corporate to be known as the Northern Ireland Human Rights Commission.

    (2)

    The Commission shall consist of a Chief Commissioner and other Commissioners appointed by the Secretary of State.

    (3)

    In making appointments under this section, the Secretary of State shall as far as practicable secure that the Commissioners, as a group, are representative of the community in Northern Ireland.

  43. On 15 August 1998 a car bomb placed by terrorists exploded in the centre of the town of Omagh in County Tyrone on a busy afternoon and twenty-nine people were killed. In the summer of 2000 the Coroner for the District of Fermanagh and Tyrone began to make preparations to hold an inquest into the deaths of the victims of the explosion, and on 16 August 2000 he wrote to the Chief Commissioner of the Commission with reference to the inquest and stated:

    An issue has been raised by solicitors acting for two of the families that there should be pre-inquest disclosure of depositions, maps and photographs ….

    As there may be a human rights dimension I am writing to ask if the Human Rights Commission would wish to make a formal submission as to the position I should adopt. If the Commission was so minded I would find it most helpful to receive prior to 30 August a skeleton argument incorporating references to any relevant authorities. My intention would be to send copies of this to all the legal representatives.

  44. The Commission instructed counsel to appear at a preliminary hearing at which representatives of the families of the victims submitted that disclosure should take place, and after hearing their submissions the Coroner decided to permit disclosure so that he did not call upon counsel for the Commission to address him on the issue.

  45. At an early stage in the inquest counsel for the family of one of the victims sought to put questions to the police about the effectiveness of their response to a bomb warning given shortly before the explosion took place. Counsel for the Chief Constable of the Royal Ulster Constabulary took objection to this line of questioning and the Coroner decided to hear submissions on the issue and arranged to hear them on a specific day, inviting the legal representatives to furnish him with skeleton arguments in advance.

  46. On 12 September the Commission wrote to the Coroner stating that it noted that an issue touching the scope of the inquest had been raised and that it considered that "there may be human rights principles arising in respect of these matters on which it would be appropriate for the Commission to make submissions to the inquest".

  47. The Commission submitted a skeleton argument to the Coroner on the scope of the inquest. The Coroner then decided that a question arose as to whether the Commission had power to intervene in the proceedings. Counsel for the Commission appeared before him and made representations that the Commission should be permitted to make submissions at the inquest but the Coroner ruled that the Commission had no statutory power to intervene and that accordingly he would not permit it to do so.

  48. The Commission then applied to the High Court for a judicial review of the Coroner's decision. In the High Court the Lord Chief Justice ruled that the Commission had no statutory power to intervene in the inquest and on appeal by the Commission the Court of Appeal (McCollum LJ and Sir John MacDermott, Kerr J dissenting) upheld that ruling.

  49. Section 69 of the 1998 Act provides:

    (1)

    The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.

    (2)

    The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving—

    (a)

    its effectiveness;

    (b)

    the adequacy and effectiveness of the functions conferred on it by this Part; and

    (c)

    the adequacy and effectiveness of the provisions of this Part relating to it.

    (3)

    The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights—

    (a)

    as soon as reasonably practicable after receipt of a general or specific request for advice; and

    (b)

    on such other occasions as the Commission thinks appropriate.

    (4)

    The Commission shall advise the Assembly whether a Bill is compatible with human rights—

    (a)

    as soon as reasonably practicable after receipt of a request for advice; and

    (b)

    on such other occasions as the Commission thinks appropriate.

    (5)

    The Commission may—

    (a)

    give assistance to individuals in accordance with section 70; and

    (b)

    bring proceedings involving law or practice relating to the protection of human rights.

    (6)

    The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for—

    (a)

    research; and

    (b)

    educational activities.

    (7)

    The Secretary of State shall request the Commission to provide advice of the kind referred to in paragraph 4 of the Human Rights section of the Belfast Agreement.

    (8)

    For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient.

    (9)

    The Commission may decide to publish its advice and the outcome of its research and investigations.

    Section 70 provides:

    (1)

    This section applies to—

    (a)

    proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or

    (b)

    proceedings in the course of which such a person relies, or wishes to rely, on such law or practice.

    (2)

    Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings to which this section applies, the Commission may grant the application on any of the following grounds—

    (a)

    that the case raises a question of principle;

    (b)

    that it would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the person's position in relation to another person involved, or for some other reason;

    (c)

    that there are other special circumstances which make it appropriate for the Commission to provide assistance.

    (3)

    Where the commission grants an application under subsection (2) it may—

    (a)

    provide, or arrange for the provision of, legal advice;

    (b)

    arrange for the provision of legal representation;

    (c)

    provide any other assistance which it thinks appropriate.

    (4)

    Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from the person in certain circumstances.

    Section 71 provides:

    (1)

    Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person—

    (a)

    to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or

    (b)

    to rely on any of the Convention rights in any such proceedings,

    unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights.

  50. In his judgment at p 10 the Lord Chief Justice stated:

    I have given careful consideration to the powers set out in each subsection of section 69. I have sought to give them as broad and sympathetic a construction as they will reasonably bear, recognising the value of the contribution which the Commission is capable of making to the work of the courts. I have still been unable to find anything in the section which confers power on the Commission to make submissions to courts and tribunals about the content of the law relating to human rights or its application to a particular case.

    And at p 12:

    The Human Rights Commission has not been given any overall function such as advancing the observance of human rights. On the contrary, its functions set out in section 69 are specific and fairly precise and do not seem to me capable by reasonable implication of extending to making submissions to the coroner at an inquest.

    In the Court of Appeal McCollum LJ stated at p 281:

    Mr. Macdonald suggested that by looking at each subsection individually the Lord Chief Justice was in error and that he should simply have taken the functions set out in s 69 as typical of those to be exercised by the Commission and made the finding that any broadly similar powers would also be exercisable by the Commission.

    I cannot agree with this approach. The provisions of the Act investing powers in the Commission must be looked at in the light of the stated objectives of the Act and in sympathy with its general import, but that does not enable a court to read something into the provisions which has not been enacted or to add to them at will.

    And at p 285:

    Draftsmen of agreements and treaties and parliamentary draftsmen can be expected to say what is meant and when specific functions are created there is no reason to suppose that it was intended to give general functions which would encompass other functions along with those actually granted. On the other hand when general functions are provided it is reasonable to conclude that particular functions falling within their general scope are meant to be included.

    Having accepted Mr. Macdonald's invitation to read not only the 1998 Act itself but also the materials provided by the Belfast Agreement and the published commentary thereon and details of the Parliamentary debate, I am firmly in agreement with the view expressed by the Lord Chief Justice that Parliament did not intend to and did not invest powers in the Commission either to intervene as an interested party or to act as amicus curiae.

    It appears to me that the powers granted by the 1998 Act either to bring proceedings in its own name or to give assistance to individuals engaged in proceedings are quite adequate to ensure that the Commission is able to make a substantial contribution to the observance of human rights in Northern Ireland and to the involvement of the courts in that process.

    Sir John MacDermott referred to the provisions of section 69 and stated at p 298:

    I cannot find in those provisions or elsewhere in the 1998 Act any express power authorising the Commission to participate in court proceedings. Mr. Macdonald disputed that conclusion when expressed by the Lord Chief Justice on the ground that it flew in the face of the very purpose for which the Commission was created — namely to promote human rights issues. The Commission may, perhaps, feel somewhat inhibited or frustrated by the absence of such a power but it must recognise that its powers are such as Parliament from time to time grants to it.

    And at p 299:

    Can a power to participate in court proceedings be derived from the Act by 'reasonable implication'? Mr. Macdonald's argument was, in essence, a claim that as the Commission should have such a power it must have it and the statutory provisions must be read accordingly. Such an approach has undertones of the belief that 'words mean what I want them to mean'. But that approach is not an acceptable approach to statutory interpretation. The Parliamentary draftsman's duty is, in so far as is possible, to express the will of Parliament in clear terms and the final version, after all amendments are absorbed, expresses the intention of Parliament. Just as I am satisfied that the Commission has been granted no express power to participate in court proceedings I am equally satisfied that no such power can be gleaned by 'reasonable implication'.

    In his dissenting judgment Kerr J stated at p 294:

    At the kernel of this debate, in my opinion, is whether any 'overall function' was conferred on the Commission by s 69. The Lord Chief Justice concluded that no explicit statutory expression of such a general function is to be found in the section. It appears to me, however, that the import of s 69 is to provide the Commission with an overarching role in the promotion and safeguarding of human rights. That is achieved by giving a number of functions to the Commission, some specific and some general. ….

    In my opinion, by providing general powers to the Commission and allowing it a wide discretion as to how some of those powers should be exercised, Parliament must be taken to have intended that the Commission should perform an overall role in relation to the observance of human rights. This may not have been spelled out in express statutory language as in the Sex Discrimination Act [1975] but the general nature of the Commission's role in the promotion of human rights is unmistakable, in my view.

    And at p 296:

    If, contrary to my view, the commission is not expressly authorised to apply to intervene in proceedings, I consider that the power to do so should be recognised as incidental to or consequential upon its general duty to promote the observance of human rights — Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473.

  51. In Baroness Wenlock v River Dee Co (1885) 10 App Cas 354, 362-3 Lord Watson, stating the principle earlier recognised by this House in Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, said:

    Whenever a corporation is created by Act of Parliament, with reference to the purposes of the Act, and solely with a view to carrying these purposes into execution, I am of opinion not only that the objects which the corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions.

  52. In their judgments the Lord Chief Justice and the majority of the Court of Appeal carefully analysed the sub-sections contained in section 69 and concluded that neither expressly nor by implication did they give power to the Commission to intervene in the inquest. I agree that the section does not give an express power to intervene, and therefore the issue to be determined is whether the power can be derived by reasonable implication. On this point I think that the arguments are finely balanced and I recognise the force of the reasoning in the judgments of the Lord Chief Justice and the majority of the Court of Appeal. In my opinion the outcome depends upon the approach which should be adopted by a court in applying the principle recognised in Attorney-General v Great Eastern Railway Co: should the court apply the principle with a degree of strictness or should it adopt a liberal approach?

  53. In my opinion the authorities show that a liberal approach should be adopted. In Attorney-General v Great Eastern Railway Co Lord Selborne LC stated at p 478:

    It appears to me to be important that the doctrine of ultrà vires, as it was explained in that case [Ashbury Railway Carriage & Iron Co v Riche (1875) LR 7 HL 653], should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultrà vires.

    It is also relevant to note that Lord Selborne then recognised that acts may be intra vires "on the ground that they are such acts, on the borderline between authority and no authority, as may reasonably be thought incidental to the exercise of powers expressly given".

    Lord Blackburn stated at p 481:

    My Lords, I quite agree with what Lord Justice James has said on this first point as to prohibition, that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.

  54. It is possible to discern a degree of difference between the speech of Lord Selborne in Attorney-General v Great Eastern Railway Co and the speech of Lord Macnaghten in Amalgamated Society of Railway Servants v Osborne [1910] AC 87, where he said at p 97:

    The learned counsel for the appellants did not, as I understood their argument, venture to contend that the power which they claimed could be derived by reasonable implication from the language of the Legislature. They said it was a power 'incidental,' 'ancillary,' or 'conducive' to the purposes of trade unions. If these rather loose expressions are meant to cover something beyond what may be found in the language which the Legislature has used, all I can say is that, so far as I know, there is no foundation in principle or authority for the proposition involved in their use. Lord Selborne no doubt did use the term 'incidental' in a well-known passage in his judgment in Attorney-General v Great Eastern Railway Co. But Lord Watson certainly understood him to use it as equivalent to what might be derived by reasonable implication from the language of the Act to which the company owed its constitution; and Lord Selborne himself, to judge from his language in Murray v Scott (1884) 9 App Case 519, could have meant nothing more.

    But to the extent that there may be a difference, I consider that later authorities have followed the approach of Lord Selborne. In Trustees of Dundee Harbour v D & J Nicol [1915] AC 550, 570 Lord Parmoor stated:

    It is settled law that a body such as the appellants, constituted by statute, have no authority except such as Parliament has conferred upon them, and that they must find a sanction for any powers which they claim to possess in their incorporating statute or statutes. These powers may be expressly authorized or implied as fairly incidental to what is expressly authorized.

  55. In Attorney-General v Smethwick Corporation [1932] Ch 562 Lord Hanworth MR., after referring to the authorities, stated at page 577:

    We have, therefore, the direction of the House of Lords that if the enterprise we are considering is incidental to or consequential upon those things which the Legislature has authorized, it ought not to be held to be ultra vires.

    And at page 579 Romer LJ stated:

    The first thing to be determined is whether the matter in connection with which expenses are about to be incurred is within the power of the corporation, or whether it is ultra vires the corporation. For the purposes of determining that question we must apply the principles enunciated by James LJ and Lord Selborne in Attorney-General v Great Eastern Ry Co.

  56. In Attorney-General v Lower Hutt City [1964] NZLR 438 at p 440 McGregor J stated:

    I agree with the submissions of counsel for the defendant that the object in entrusting authority to a public body such as the defendant is to enable it to provide services to the public, and the statute should receive a fair, large and liberal construction in accordance with its objects. In the case of powers conferred by the Act the Court should be liberal in deciding what matters are fairly incidental to or consequential upon the express authority conferred.

    And at p 461 McCarthy J stated:

    …. in determining what powers actually are conferred by legislation, the Courts will consider the corporation as having, not only the powers expressly stated, but also "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised": Lord Selborne in Attorney-General v Great Eastern Railway Co [1880] 5 App Cas 473, 478; Dundee Harbour Trustees v D & J Nicol [1915] AC 550, 570. Further, in deciding what can fairly be regarded as incidental to express powers, the Courts do not think narrowly. They bear in mind the public nature of the obligations of a local body and the requirements of its community, and they take a liberal view of the power under consideration: Attorney-General v Crayford Urban District Council [1962] Ch 575; [1962] 2 All ER 247. Finally if the act done is within a discretionary power of the corporation, the Courts will not interfere if the discretion has been exercised reasonably and bona fide: Westminster Corporation v London & North Western Railway [1905] AC 426.

    It is important to bear these directions in mind, for the conclusion one reaches in this case depends largely, it seems to me, on the spirit in which one approaches the interpretation of the statutory provisions on which the respondent relies ….

  57. Wade & Forsyth on Administrative Law 8th Ed at page 219 also state that the courts adopt a liberal approach:

    A statutory power will be construed as impliedly authorising everything which can fairly be regarded as incidental or consequential to the power itself; and this doctrine is not applied narrowly.

    Then after referring to a number of authorities the authors say at page 220:

    Statutory powers therefore have considerable latitude, and by reasonable construction the courts can soften the rigour of the ultra vires principle. Although this book contains so many instances of that principle being infringed, it must be remembered that the courts intervene only where the thing done goes beyond what can fairly be treated as incidental or consequential.

  58. In my opinion the liberal approach stated in the authorities is applicable to the determination of the powers of the Commission as well as to the determination of the powers of local authorities and commercial companies, notwithstanding that the Commission was established pursuant to the Belfast Agreement. A body such as the Commission, like any corporation created by statute, is bound to have incidental functions to perform and I do not consider that it is appropriate to hold that it has no powers other than those expressly conferred on it by statute: as Lord Selborne stated in Attorney-General v Great Eastern Railway Co at p 478, if a corporation is not to have a power reasonably incidental to its express powers, the exercise of that power should be expressly prohibited.

  59. When I turn to consider whether the power to intervene in an inquest can be implied as fairly incidental to what is expressly authorised by section 69 and when, in accordance with the authorities to which I have referred, that question is approached in a liberal and not in a narrow way, I am of opinion that the power is fairly incidental to the express powers given by the section. Section 69(5)(a) empowers the Commission to give assistance to an individual who applies to it and who has commenced or wishes to commence proceedings involving law or practice relating to the protection of human rights, and section 69(5)(b) empowers the Commission itself to bring such proceedings. On a strict construction it can be argued that as Parliament in section 69(5)(a) has only authorised the Commission to give assistance to a person who himself is bringing proceedings, Parliament did not intend that the Commission should itself intervene in proceedings. Similarly it can be argued that as Parliament in section 69(5)(b) empowered the Commission itself to bring proceedings, Parliament did not intend that the Commission should intervene in proceedings which it had not commenced. But I consider that a more liberal interpretation leads to the conclusion that where Parliament has expressly authorised the Commission to assist an individual to bring proceedings in respect of human rights and to bring proceedings itself, it is incidental to those powers for the Commission also to have the power to intervene in proceedings where a human rights issue arises and where the court permits it to intervene.

  60. I consider that this conclusion is supported by the provisions of section 69(6) which state that the Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland. Again it can be argued that the power relates to educating the public and public bodies as to the importance of human rights, particularly by research and educational activities, and that the power does not extend to making submissions to a court on a point of human rights law. But on a more liberal approach, and bearing in mind that on occasions this House has permitted an interested body to intervene in proceedings to make submissions, as where Amnesty International was permitted to make submissions in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte [2000] 1 AC 61, I am of opinion that the making of legal submissions to a court can be regarded as incidental to the power of promoting understanding of human rights. I do not express any opinion on the ambit of section 71(1) save to say that I do not consider that it operates to prevent the Commission intervening to make submissions in an inquest.

  61. Therefore I would allow the appeal and would hold that the Commission had power to intervene in the proceedings of the inquest to make submissions on a human rights issue. However I wish to emphasise that the only issue before the House is whether such an intervention is within the powers of the Commission, and I also desire to express my full agreement with the observations of my noble and learned friend Lord Slynn of Hadley in paragraph 25 above that it is for the court to decide whether it will permit the Commission to intervene and that the Commission should exercise caution in deciding whether to apply to intervene in proceedings.

    Lord Hobhouse of Woodborough

    My Lords,

  62. This appeal from the Court of Appeal of Northern Ireland raises a question of the construction of s.69 in Part VII of the Northern Ireland Act 1998. Sections 68 and 72 create a new statutory body to be known as the Northern Ireland Human Rights Commission (the 'Commission') and s.69 states what are the functions of that body. The question is whether the statutory functions include intervening in legal proceedings, specifically applying to intervene in inquests when a point has arisen in an inquest to which the European Convention on Human Rights (the 'Convention') as incorporated into the law of Northern Ireland is or may be relevant. It is the opinion of Carswell LCJ and, in the Court of Appeal, of McCollum LJ and Sir John MacDermott that the statutory functions of the Commission do not include such intervention. Kerr J dissenting preferred the contrary view.

    THE APPROACH TO THE QUESTION OF CONSTRUCTION

  63. The primary guide to construction is to be found in the preamble of the Act. It states that it is:

    An Act to make new provision for the government of Northern Ireland for the purpose of implementing the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883.

    The agreement referred to is the multi party agreement generally known as the 'Belfast Agreement'. It was a unique constitutional document of both national and international significance. It represented an agreement between the governments of the United Kingdom and the Irish Republic as to the status of Northern Ireland and included, inter alia, provision for various institutions to be set up in the respective countries. However, it also represented a political settlement within the respective countries themselves. It had been negotiated with the participation of the recognised political parties and was commended to the people of the North and the South for their approval. It was validated by referenda held in each country. By the Belfast Agreement the parties, in a section headed "Rights, Safeguards and Equality of Opportunity", affirmed their commitment to human rights and the British Government undertook to complete the incorporation of the Convention into the law of Northern Ireland giving direct access to the courts and giving the courts the power to overrule legislation of the Northern Ireland Assembly on grounds of inconsistency (paragraph 2), providing for equal opportunities (paragraph 3) and the setting-up of a new Northern Ireland Human Rights Commission to consult and advise upon supplementing Convention rights in Westminster legislation (paragraph 4).

  64. Counsel for the Commission, rightly, drew your Lordships' attention to paragraphs 4 and 5 of this section of the Belfast Agreement as being relevant to the understanding of s.69 and what were to be the functions of the Northern Ireland Commission.

    4.

    The new Northern Ireland Human Rights Commission (see paragraph 5 below) will be invited to consult and to advise on the scope for defining, in Westminster legislation, rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and - taken together with the ECHR - to constitute a Bill of Rights for Northern Ireland. Among the issues for consideration by the Commission will be:

    the formulation of a general obligation on government and public bodies fully to respect, on the basis of equality of treatment, the identity and ethos of both communities in Northern Ireland; and

    a clear formulation of the rights not to be discriminated against and to equality of opportunity in both the public and private sectors.

    5.

    New Institutions in Northern Ireland

    New Northern Ireland Human Rights Commission, with membership from Northern Ireland reflecting the community balance, will be established by Westminster legislation, independent of Government, with an extended and enhanced role beyond that currently exercised by the Standing Advisory Commission on Human Rights, to include keeping under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so.

    The Irish Government was also to take comparable steps to strengthen the protection of human rights within its own jurisdiction, together with itself establishing a Human Rights Commission for the Republic in accordance with separate provisions contained in paragraph 9.

  65. These then are the provisions of the Belfast Agreement which are implemented by sections 68 and following of the Act. Indeed it easily perceived that s.69 has been drafted using paragraph 5 as a blueprint. This is the context in which the s.68 should be construed. The Commission put at the forefront of its case the well known statement of Lord Selborne LC in the case of Att-Gen v Great Eastern Rly Co (1880) 5 App Cas 473 at 478 which concerned an Act of Parliament for the construction and operation of railways by railway companies, referring to what had been said in an earlier case, Ashbury Rly Carriage & Iron Co v Riche LR 7 HL 653, concerning the powers of an industrial company under its memorandum:

    It appears to me to be important that the doctrine of ultra vires, as it was explained in that case, should be maintained. But I agree with James LJ that this doctrine ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.

    In the same case Lord Blackburn said (p.481):

    ... those things which are incident to, and may be reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.

    Thus, for commercial entities, a commercial approach should be adopted and reasonable implications made. Similar approaches have been adopted in relation to Local Government and similar authorities. But the Commission is neither a commercial enterprise nor a Local Authority. It is a specially constituted body with defined powers.

  66. The authorities helpfully cited in the Opinion of my noble and learned friend Lord Hutton show how far removed the context of that type of statute is from the context of the Northern Ireland Act 1998. The Belfast Agreement was an intensely political act where, after very difficult negotiations and a referendum campaign, agreement was finally obtained for a document which then fell to be given effect to in an Act of Parliament. Matters which might easily be thought to be reasonable for inclusion in the Belfast Agreement may well not have been included for some political reason not apparent subsequently to lawyers who have not been privy to what occurred. The question whether a Human Rights body should be empowered to intervene in litigation otherwise than on behalf of a legitimate party to that litigation could be an activity with considerable political significance so long as sectarian divisions persist. It must have been a political judgment how proactive and interventionist a Commission would be acceptable to the people of Ulster as a whole.

  67. The Commission's argument in your Lordships' House was unable to derive any support from the terms of the Belfast Agreement nor from the actual wording of paragraph 5. Section 69 clearly follows the scheme of paragraph 5 and is intended to reproduce it. There is a reference in both paragraph 5 and section 69(5) to legal proceedings but it was specifically accepted by counsel appearing on the appeal for the Commission that it could not gain assistance from these provisions as they were not wide enough (even on its own approach) to give the Commission the powers it claims in the present case.

  68. There is a further point. A primary function of the Commission is stated in s.69(1) and (2) to be to review and make recommendations before two years have elapsed for improving its effectiveness and the adequacy and effectiveness of the functions conferred on it in Part VII of the Act. It is thus contemplated that the functions may have been drawn more narrowly than the Commission thinks is appropriate and it requires the Commission to address that problem by making recommendations to the Secretary of State. This recognises that enhancements of the Commission's powers beyond those expressly granted will raise political considerations to be assessed by the Executive not the Judiciary. In declining to be drawn into the extension of the powers of the Commission, I consider that the Lord Chief Justice and the majority of the Court of Appeal correctly understood the intent of the Belfast Agreement and the implementing legislation and their place in the constitutional framework of the Province.

  69. The argument of the Commission as presented to your Lordships (supported by the Secretary of State as an intervener) was put in three ways. The first was to submit that there was an over-arching purpose to be found in s.69 which was to give the Commission whatever powers were appropriate for a Human Rights Commission and the various subsections were merely examples of such powers. But this is not how section 69 is drafted nor, for that matter, is paragraph 5 drafted in that way either. They are lists of specific functions. The nearest that s.69 comes to a general purpose is in subsection (1). But this provision for keeping under review the adequacy and effectiveness of the law and practice of Northern Ireland is preliminary to the exercise of its functions under (2), (3), (7) and (9) and cannot be said to justify claiming a power to intervene in judicial proceedings. This was the second way in which the Commission put its argument, relying on the words "keep under review". But this argument fails because, as I have said, these words do not imply a power to intervene in judicial proceedings.

  70. The third way of putting its argument was that upon which the Commission mainly relied. This was that the duty to "promote understanding and awareness of the importance of human rights": subsection (6). The corresponding words in the Belfast Agreement are "providing information and promoting awareness of human rights". If this was intended to imply a power to intervene in judicial proceedings it is an odd way to do it. The obvious import is public education and this is exemplified by the two examples given - "research" and "educational activities": this is how it expressly visualises that the purpose described will be carried out. The context of subsection (6) is further demonstrated by its juxtaposition with the preceding subsection, subsection (5) (cross-linking with sections 70 and 71). As counsel specifically accepted, subsection (5) is drawn in specifically limited terms which preclude construing subsection (5) as authorising the claimed power to intervene. When a section includes a specific subsection dealing with and limiting the Commission's power to involve itself in litigation, it is not consonant with the ordinary canons of statutory construction to construe another subsection which does not expressly do so as removing the limitations in the specific provision. But in any event, where incidental powers are concerned, they should only be implied where they are reasonably implicit in the performance of the primary express function. Engaging in litigation cannot be said to be implicit in or necessary for the subsection (6) function of promoting understanding and awareness. Subsection (6) already contains its own addition of incidental powers. Where the draftsman of the Act has wished to include incidental powers he has done so expressly, as he has done in subsections (8) and (9).

  71. Therefore I would not construe s.69, even divorced from its context, as conferring the power claimed. When one adds the legislative context of the Act as being legislation to give effect to the Belfast Agreement, I consider that the correctness of the answer given by the courts in Northern Ireland is clear. If the Commission desires powers greater than those expressly given by s.69 it should recommend to the Secretary of State that it be given them and the Secretary of State can make the necessary political decision and take steps to implement it. It would appear that the Secretary of State already believes that the Commission should have the claimed power; if so it is for him to initiate the appropriate legislative steps.

  72. There was a subsidiary point which I should mention. It was suggested that the Commission should have the power claimed so that it could act as an amicus curiae. This argument was misconceived for a number of reasons.

    • First, there already exist powers to appoint amici and they are constitutionally to be exercised by the Attorney-General. 

    • Secondly, the Commission does not see its role as being impartially to assist the court which is the role of an amicus.

    The Commission has avowedly the object of arguing strenuously for its view of human rights and their protection. This is no criticism of the Commission but it is not the role of an amicus. In some circumstances a court can request an advocate to assist it by representing an unrepresented party. But that is not the present case and the provision of assistance to unrepresented or inadequately represented parties or acting for victims of human rights infringements is already expressly dealt with in s.69(5), s.70 and s.71. (It should be noted, pace what my noble and learned friend Lord Slynn has said in paragraph 23 of his Opinion, that in sections 70 and 71 the "person" referred to is not the Commission but the person whom the Commission is assisting or acting for.) So this submission by the Commission did not assist its case on the appeal. Similarly, reference to the fact that your Lordships are, as the supreme court of this country, willing on occasions exceptionally to entertain written or oral submissions from persons or entities not parties to the relevant appeal again does not assist because what is in question in the present case is not the powers of the court but the powers of the Commission. As regards the powers of the Court and their exercise, I would join my noble and learned friends in what they have said in that connection in paragraphs 25 and 61.

  73. Accordingly I would dismiss this appeal.


Cases

Pepper (Inspector of Taxes) v Hart [1993] AC 593; R v DPP ex parte Duckenfield [1999] 2 All ER 873; Re F (Mental Patient: Sterilisation) [1999] 2 AC 1; R v Bournewood Community & Mental Health NHS Trust, ex parte L [1999] 1 AC 458; Equal Opportunities Commission v Secretary of State for Employment [1995] 1 AC 1; R v Kansal (No 2) [2001] 3 WLR 1562; Baroness Wenlock v River Dee Co (1885) 10 App Cas 354; Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473; Amalgamated Society of Railway Servants v Osborne [1910] AC 87; Trustees of Dundee Harbour v D & J Nicol [1915] AC 550; Attorney-General v Smethwick Corporation [1932] Ch 562; Attorney-General v Lower Hutt City [1964] NZLR 438; R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte [2000] 1 AC 61; Ashbury Rly Carriage & Iron Co v Riche LR 7 HL 653

Legislations

Northern Ireland Act 1998: s.68, s.69, s.70, s.71

Authors and other references

The Belfast Agreement, Command Paper 3883

Hansard 18 November 1998

Hansard 24 Nov. 1997

Wade & Forsyth on Administrative Law 8th Ed


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