THE HUMAN RIGHT ACTS 1998

Gary Lucken: 01892 523302 / 07795 831395 92 Culverden Down Tunbridge Wells TN4 9TA Justice Secretary Jack Straw says he is “frustrated” at the way the 1998 Human Rights Act has sometimes been interpreted by the courts and called for a debate about the need for legal responsibilities to balance the rights set out in the Act. Ends…

The Human Rights Act 1998 (c42) is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights(ECtHR) in Strasbourg.

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of any other primary legislation provides no other choice. It also requires the judiciary (including tribunals) to take account of any decisions, judgment or opinion of the European Court of Human Rights, and to interpret legislation, as far as possible, in a way which is compatible with Convention rights.However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). However, judges may strike down secondary legislation. Under the Act, individuals retain the right to sue in the Strasbourg court.

Former Prime Minister David Cameron criticised the Act from 2007 and proposed to replace it with a “British Bill of Rights” during his second ministry.

The Human Rights Act 1998

The HRA was conceived of as a way of establishing access to justice in British courts. With the traditional framework of statutory and common law principles regarded as providing inadequate protection for individual rights the HRA introduced the European Convention on Human Rights (ECHR) into domestic law. Jack Straw emphasized that the goal of the HRA centred on ‘bringing rights home’. Individuals in the UK would be able to bring a human rights claim without having to face the expense and delay of taking a case to the European Court of Human Rights. The HRA provides that it is ‘unlawful’ for a public authority to act incompatibly with a Convention right and individuals are able to challenge such acts.

The Act preserves the principle of parliamentary sovereignty rather than entrenching the rights of the Convention.  It gives a new cause of action in that public authorities, including the courts, may be viewed as committing the statutory tort of breaching an article of the Convention. Two key mechanisms relate to the idea of parliamentary sovereignty. Firstly, s3 specifies that courts are required to interpret legislation compatibly with Convention rights ‘so far as is possible to do so’. Secondly, s4 provides that where the courts cannot interpret legislation compatibly with Convention rights they are in a position to make a declaration of incompatibility. However, as Straw emphasized ‘if Parliament wishes to maintain the position enshrined in an Act…incompatible with the Convention in the eyes of a British court, it is that Act which will remain in force.’

Proportionality

One of the key strengths of the HRA in protecting individual rights is its use of proportionality as a basis of review for executive action.  Applying the ‘necessary in a democratic society’ test where an action is only deemed necessary if it meets a ‘pressing social need’ and is ‘proportionate’ is a more demanding form of scrutiny that the traditional approach used in domestic law which focuses on irrationality. Lord Steyn in Daly distinguished proportionality as a doctrine requiring assessment of ‘the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions.’  It was also argued by Lord Bingham in Denbigh that the intensity of review resulting from the proportionality test would often be greater than under the irrationality test. Despite there being debate as to how intense the proportionality test should actually be (Doherty) the pattern set by Daly, Denbigh and Doherty is that executive action is now examined more rigorously under the HRA than before and as such affords individual rights greater protection.

Incompatibility

S4 has positively impacted the protection of individual rights in the UK. For instance this can be seen with reference to Art. 5, the right to liberty and security of the person.  The structure of the Convention allows States to derogate from Art 5 under particular circumstances outlined in Art.  15 such as a ‘time of war or other public emergency threatening the life of the nation.’ Commentators have also pointed to the problem of ‘legislative creep’ which has led to the broadening of the definition of ‘very serious offences’ such as terrorism as shown by s1 of the Terrorism Act 2000.  Having widened the number of people likely to meet the ‘terrorist test’ even a small increase in police powers of arrest and detention represented a threat to the right of individual liberty.

Two such increases took the form of indefinite detention without charge, trial or conviction under the Anti-Terrorism, Crime and Security Act 2001 and ‘control orders’ under the Prevention of Terrorism Act 2005. A v Secretary of State for the Home Department brought s.23 of the 2001 Act before the House of Lords. S.23 allowed the Home Secretary to detain without charge any foreigner who the Home Secretary regarded as a terrorist the individual would not be deported to his home country. The government claimed the threat posed justified a derogation under Art. 15. However although the Lords accepted a ‘public emergency’ existed they held that s23 did not meet the extra requirement of Art. 15, that derogation was limited only to the ‘exigencies of the situation.’ S23 failed the proportionality test, could not be interpreted as compatible with convention rights because it was prima facie incompatible with Art 5 and so the Court issued a declaration of incompatibility.

A second declaration of incompatibility was made in JJ and others with reference to the control order regime enacted in the Prevention of Terrorism Act 2005. The trial hinged on whether the restrictions imposed on JJ should be regarded as a deprivation of liberty within Art. 5. Sullivan J reasoned that it did and this was upheld in the Court of Appeal and the House of Lords. The reaction of the government in both these cases is of considerable significance. Rather than choosing to proceed with s23 as it is legally entitled to do the government sought to replace it with control orders. When control orders amounting to 18 hours a day were construed as engaging Art. 5 the government changed it to twelve hours a day, in line with the House of Lords reasoning.  The HRA, in providing for a declaration of incompatibility, enables the legitimacy of legislative power to be substantially undermined and as such provides protection for individual rights.

The reach of the HRA

S 6 (1) of the HRA provides that it is ‘unlawful’ for a public authority to act incompatibly with a Convention right. To this extent then individuals are afforded protection from public bodies under the HRA but there is no explicit provision in the act that individuals and the private sector are required to abide by Convention rights. However, the actual reach of the HRA is a source of contention in judicial and academic circles. Not only have there been difficulties in giving meaning to the term ‘public authority.’(Poplar v Donoghue) There is also considerable debate as to whether the Act should only be read as vertically effective or also has horizontal effect. Whilst there is not space within the confines of this essay to do justice to the breadth of this debate it is arguable that case law supports the idea that the HRA has horizontal impact. (Douglas and Zeta-Jones v Hello! Ltd, Venables v Newsgroup Newspapers Ltd). The courts’ approach here was to see the HRA as providing a legislative incentive for the development of existing common law principles. In light of this the HRA can be seen as having the capacity to offer broad protection to individual rights in the both public and private sectors.

Deference

However, the impact of the HRA on individual rights is weakened is through a doctrine of ‘deference’.  Construed from the idea that courts should be in a constitutionally subordinate position to Parliament it refers to deference from the courts to decisions made by elected bodies.  The doctrine is a variation of the ‘margin of appreciation’ principle. In the jurisprudence of the ECrtHR the court’s task is supervisory and allows states a certain amount of autonomy in determining if a derogation from a Convention right is permissible.The principle expresses a limited notion of justiciability in both a substantive and transnational sense.

It can be argued that the concept of deference in domestic law goes further than the ‘margin of appreciation’ so that the scope of the ‘presumptive entitlement’ part of particular rights relies not just on judicial definition but also political. (R v Lambert, Ali and Jordan) In Alconbury and Kebilene a distinction was drawn between ‘basic rights’ and ‘allocation of resources’ issues.  Broadly speaking this is the difference between political rights and socio-economic rights. The former is regarded as unsuitable for the doctrine of deference whilst the latter is a suitable issue for deference to the legislative viewpoint.

The effects of the doctrine of deference are as follows. Firstly, it has the potential to undermine the fundamental character of Convention rights as they would no longer be above party politics. Secondly, it limits the impact of s3 and s4. The need to apply either to Convention rights where the presumptive scope ‘has elastic meaning’ is less pressing. Thirdly, this has resulted in the creation of a hierarchy of rights where greater protection is afforded by the courts to political rights over socio economic rights. (Wilson v First Country Trust)

Conclusion

This essay has argued that the HRA 1998 has strengthened the protection of individual rights in the UK. The proportionality test, the declaration of incompatibility and even the reach of the act all lend themselves to this conclusion. However, it should be noted that the Act’s impact remains limited by the role of parliamentary sovereignty. The doctrine of deference creates a hierarchy in rights protection and individual rights are not entrenched in any legal sense. Alternative ideas of moral entrenchment seem rather inadequate in light of the current Conservative Party’s enthusiasm for repealing the Act.

Bibliography

  • Fenwick, Helen, Civil Liberties and Human Rights, UK 2007
  • Bailey, Harris & Jones, Civil Liberties Cases and Materials, UK 2001
  • Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009
  • ‘The Case for The Human Rights Act’, Equality and Human Rights Commission (2011)
  • Craig P (2001) ‘The Courts, the Human Rights Act and Judicial Review’ LQR 592
  • House of Commons Second reading. Official report, 16 February 1998, vol 307 col 769.
  • Maureen Spencer and John Spencer, Nutcases, Constitutional and Administrative Law, 2009

Cases

  • R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26
  • R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2004] EWHC 1389
  • Birmingham City Council v Doherty and others [2008] UKHL 57
  • A and others v Secretary of State for the Home Department ,[2004] UKHL 56; [2005] 2 AC 68.
  • Secretary of State for the Home Department v JJ and others [2007] UKHL 45, [2008] 1 AC 385, [2008] 1 All ER 613
  • Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595, [2001] 4 All ER 604.
  • Douglas and Zeta-Jones v Hello! Ltd[2001] QB 967, CA
  • Venables v Newsgroup Newspapers Ltd [2001] 1 All ER 908
  • R v Lambert Ali and Jordan [2001] 2 WLR 211
  • Alconbury Developments v Secretary of State for the Environment [2001] UKHL 23, [2001] 2 All ER 929
  • R v DPP ex p Kebilene [1999] 3 WLR 972 at 994.
  • Wilson v First Country Trust [2003] UKHL 40, [2003] 4 All ER 97

Footnotes

  1. ‘The Case for The Human Rights Act’, Equality and Human Rights Commission, 2011
  2. House of Commons Second Reading. Official report, 16 February 1998, vol 307 col 769
  3. Ibid.
  4. ‘The Case for The Human Rights Act’, Equality and Human Rights Commission, 2011
  5. House of Commons Second Reading. Official report, 16 February 1998, vol 307 col 769.
  6. R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26
  7. Feldman referenced in Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009 p726
  8. Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009 p730
  9. Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009 p 672.
  10. Craig P (2001) ‘The Courts, the Human Rights Act and Judicial Review’ LQR 592
  11. Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009 p 615.
  12. Craig P (2001) ‘The Courts, the Human Rights Act and Judicial Review’ LQR 592
  13. Loveland, Ian, Constitutional Law, Administrative Law and Human Rights, UK 2009 p675
  14. Ibid. p 674.

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