WHAT IS PUBLIC LAW ( PART 9 )

By Law Teacher

9.1.1 Human Rights Act 1998 – Introduction

Welcome to the ninth topic in this module guide – the Human Rights Act 1998! Human rights are thought of as the minimum level of protection that should be afforded in law by a government to its citizens. They are immutable, which means that a state cannot remove them from its people. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the United Kingdom is entitled to; it incorporates the rights set out in the European Convention on Human Rights into domestic British law.

The following are contained within Schedule 1 of the Human Rights Act: the right to life, the prohibition of torture, the prohibition of slavery and forced labour, the right to liberty and security, the right to a fair trial, the right to no punishment without law, the right to respect for private and family life, the freedom of thought conscience and religion, the freedom of expression, the freedom of assembly and association, the right to marry and the prohibition of discrimination.

Below are some goals and objectives for you to refer to after learning this section.

Goals for this section:

  • To understand the difference between first generation, second generation and third generation rights at an international level.
  • To be able to identify the principal cases where the United Kingdom was found to be in breach of the European Convention on Human Rights and under which Articles these cases were considered under.
  • To understand how the Human Rights Act and the European Convention on Human Rights are intertwined.

Objectives for this section:

  • To be able to identify the extended optional protocols that signatory states can sign up to under the European Convention on Human Rights.
  • To be able to comprehend the remedies available upon the breaching of a Convention right by a public authority under Article 8 of the Human Rights Act, namely: damages, declarations, injunctions, quashing orders, mandatory orders and prohibiting orders.

9.1.2 Human Rights Act 1998 Lecture

A. Introduction

Modern human rights laws originate from agreements made by the international community in the immediate post Second World War years. The Universal Declaration on Human Rights 1948 is the first statement of these rights; it is a General Assembly Resolution and as such is not legally binding. These rights were brought into form as a regional instrument within the European Convention on Human Rights and Fundamental Freedoms 1950. The Human Rights Act 1998 illustrated a further commitment to human rights laws within the United Kingdom. It introduced the rights within the Convention into UK domestic law. The Human Rights Act 1998 was introduced by the previous Labour government. Since the Conservative party have taken power, both David Cameron and Teresa May have vowed to repeal the Human Rights Act 1998 and there has also been some discussion of withdrawing from the European Convention on Human Rights.

B. What are Human Rights?

Human rights might be considered as a minimum level of protection that should be afforded in law by a government to its citizens. They are inherent to all humans and a manifestation of human dignity. They are inalienable, which means a state cannot remove them from its people.

Human rights at the international level have been referred to as ‘generations’ or rights. The first generation included civil and political rights, which are the basic requirements of citizenship linked to security, liberty and equality. These include rights which are essential to the functioning of a democratic state, they include the right to freedom of expression, to a fair trial and to liberty. The European Convention on Human Rights 1950 to which the UK is a signatory, is a statement of civil and political rights at the regional level. On an international level the Universal Declaration on Human Rights 1948 (UDHR) is a declaration (non-legally binding) of civil and political rights, as is the United NationsInternational Covenant on Civil and Political Rights 1966.

This first generation of rights are considered to be negative rights, or are rights that the state cannot remove from an individual. The second generation of rights are economic, social and cultural rights. These usually require the state to provide or to guarantee access to something, and hence are also positive rights.

Third generation rights are those, which are afforded to communities, as opposed to individuals. Third generation rights include the right to self-determination and are frequently included in ‘soft law’ instruments, which are not legally binding.

C. Human Rights and Parliamentary Sovereignty

If parliament is sovereign and can make any law, how can the government be constrained by human rights principles, which in effect constrain its legal decision making. The two concepts appear to be at odds, in that human rights protection is designed to protect individuals from the state and prevents legislation and executive action from acting as barriers to fundamental rights. At the same time, parliamentary supremacy theoretically affords total freedom to the Westminster Parliament to legislate upon any matter and with whatever conditions it chooses. It is clear that the Human Rights Act 1998 is legislation, which like the European Communities Act 1972 is also capable of repeal by Parliament.

D. The European Convention on Human Rights

The European Convention on Human Rights (ECHR) was signed in Rome in 1950 and was ratified by the United Kingdom in 1951. It came into force in those States who had ratified it in 1953. The drafting of the ECHR was a direct result of the movement for co-operation in Western Europe, which in 1949 led to the establishment of the Council of Europe. The rights within the ECHR are based upon the principles included within the UDHR. The ECHR transforms the non-binding declaration of the UDHR into binding legal principles with an enforcement mechanism in the form of the European Court on Human Rights (ECtHRs). The Convention rights should be protected by law, without discrimination, in each state.

The ECHR provides a constraint on the legislative authority of national parliaments, including the Westminster Parliament. These constraints have been an area of political controversy within the UK, under both Conservative and Labour governments. In particular successive governments have objected to constraints on their powers due to decisions of the ECtHR, with some UK politicians arguing that the Court is overreaching its powers.

i. The Scope of the ECHR

The ECHR is generally accepted to be first generations or civil and political rights; although over time, the ECtHR has developed the scope of the Convention rights to address important societal issues of the present day.

Article 14 provides the basis upon rights should be provided, it states that the rights are to be enjoyed:

without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Furthermore, Article 15 permits derogations of certain Convention rights in times of emergency.

Case in Focus A (and Others) v Secretary of State UKHL 56

The scope of the Convention has also been extended by a number of optional protocols, that signatory states are able to sign up to.

  • The First Protocol – provides for the peaceful enjoyment of one’s possession, the right of education in accordance with religious and philosophical convictions and the right to free elections by secret ballot.
  • The Fourth Protocol – guarantees freedom of movement within a state and freedom to leave the country, it prevents a state from excluding its own nationals or not allowing entry.
  • The Sixth Protocol – provides for the abolition of the death penalty, the only exception is to be in times of war, the UK has ratified this Protocol
  • The Seventh Protocol – provides for ‘equality of rights and responsibilities of a private law character’ between spouses.
  • The Eleventh Protocol – abolished the Commission and Created a Full-Time Court.
  • The Twelfth Protocol – contains a general prohibition against discrimination and has not been ratified by the UK
  • The Thirteenth Protocol – provides for the abolition of the death penalty in all circumstances and has been ratified by the UK
  • The Fourteenth Protocol – makes further amendments to the composition of the ECHR.
  • The Fifteenth Protocol – is not yet in operation.

ii. The Complaints Procedure

One important feature about the rights contained within the ECHR is that individual have the right to complain of breaches of the Convention by States parties. The complaints procedure initially comprised of the European Commission of Human Rights and the European Court on Human Rights.

Prior to the Eleventh Protocol, states needed to have accepted the compulsory jurisdiction of the court, or have consented to the case being brought before it.

The Eleventh Protocol

The Eleventh Protocol abolished the European Commission of Human Rights and created a full-time court. Although the new court has the same name, it is entirely different with new powers, functions and composition. The main effect of this Protocol was to allow applicants to apply directly to the ECtHR.

There are a number of important points regarding admissibility to the ECtHR:

  • Inter-state applications are still possible (Article 33) or individuals and NGOs (Article 34)
  • The applicant should have exhausted domestic remedies and brought the application within 6 months of the final decision
  • Any application that is manifestly ill-founded or an abuse of the individual right of application will be declared inadmissible (Article 35(1))
  • Cases may be struck out because the applicant has not suffered significant disadvantage (Fourteenth Protocol)

The Fourteenth Protocol

The Fourteenth Protocol was introduced as a direct response to the massive workload of the Court which came about as a result of the Council of Europe expansion since 1989.

iii. The Strasbourg Jurisprudence and the UK

From 1975-1990, the ECtHR decided 30 cases involving the UK. The UK were found to be in breach of the Convention in 21 cases.

Article 2 cases, the UK was found to be in breach in:

  • McCann v UK (1995)
  • Jordan v UK (2003)
  • Pretty v UK (2002)

Article 3 cases:

  • Republic of Ireland v UK (1978)
  • Tyrer v UK (1978)
  • Soering v UK(1989)

Article 5 and Article 6 cases:

  • In X v UK (1981)
  • Brogan v UK (1988)
  • Caballero v UK (2000)
  • Murray v UK (1996)
  • V v UK (2000)
  • Steel and Morris v UK (2005)

Article 8 cases:

  • Dudgeon v UK
  • Malone v UK (1984) 7 and Halford v UK (1997)

Article 10 cases:

  • Sunday Times Ltd v UK (1979)
  • Handyside v UK (1976)
  • Observer, Guardian and Sunday Times v UK (1991)
  • Goodwin v UK (1996)

Article 11 cases:

  • Young, James and Webster v UK (1981)
  • Wilson v UK (2002)

Case in Focus Hirst v United Kingdom (No.2) 92005] ECHR 681, (2006) 42 EHRR 41

E. The Human Rights Act 1998

Prior to the introduction of the Human Rights Act 1998 (HRA) human rights principles were contained in common law and in various statutory provisions. International law has had a considerable influence on the development of human rights, and there have also been a number of international institutions which have established multilateral human rights treaties.

Section 2 HRA 1998 – Interpretation of Convention Rights

Section 2(1) of the HRA 1998 requires that a court or tribunal interpreting questions relating to Convention rights must take account of various decisions of the European adjudicatory bodies.

When interpreting Convention rights the ECtHR and the UK courts must take account of the principle of proportionality. Legitimate aims can be pursued through government legislation but that aim must be proportionate to any human rights impacts that result.

Case in Focus R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532 & Campbell v MGN [2004] 2 AC 457

Section 3 HRA 1998 – interpretation

Section 3 of the HRA 1998 requires the courts to interpret primary and secondary and legislation in a manner that is compatible with Convention rights. An example of the House of Lords interpretation of statutory law in the light of the right to a fair trial in Article 6 was found in R v A.

Case in Focus: R v A [2002] 1 AC 45

Bills that are passed since the HRA 1998 came into force in 2000, the minister introducing the bill must issue a statement of compatibility’ that the bill is compatible with Convention rights.

Section 4 HRA 1998

Section 4 of the HRA 1998 enables courts to make a ‘declaration of incompatibility’ where it is not possible for it to interpret a statute in line with Convention rights.  It is only the higher courts that are able to make such declarations.

Cases in Focus: Wilson v First Country Trust Limited (No.2) [2001] 3 WLR 42 & A and Others v Secretary of State from the Home Department[2005]UKHL 56

Section 6 HRA 1998

Section 6 provides the ability for the HRA 1998 to be enforce Convention rights against public authorities. Section 6(1) HRA 1998, provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. A public authority has been given a wide definition and this is included within section 6(3).

Case in Focus L v Birmingham City Council [2007] UKHL 27

However, section 145 of the Health and Social Care Act 2008 now provides that a private care home providing services under contract with a local authority is now considered to be exercising “functions of a public nature” within s6 (3)(b) HRA 1998.

Section 7 HRA 1998

Section 7(1) HRA 1998 allows a prospective victim to bring proceedings against an authority in an appropriate court or tribunal. Victim means anyone affected by the act or omission that leads to the breach of the Convention right.

Case in Focus: Matthews v Ministry of Defence [2003] 1 AC1163

Section 8 HRA 1998 – Remedies

Remedies once a breach of a Convention right by a public authority is available, the remedies are included under Article 8(1).

Case in Focus: Marcic v Thames Water Utility [2004] 2 AC 42

9.1.3 Human Rights Act 1998 Lecture – Hands on Examples

Working through practical examples is a very useful way of discovering whether you have understood the points of law that you are revising and are able to apply them in practical situations. You may need to refer back to the notes on the chapter on The Human Rights Act 1998. These exercises are aimed to help you understand the application of human rights principles in the courts as well as the need to balance competing human rights which are owed to different individuals.  Suggested answers are available below.

Q1 – The government introduces Terror Suspects Act 2015. Section 12 of the Act introduces a scheme of Stay At Home Orders which mean that terror suspects prescribed as such by the Home Secretary must stay at home between the hours of 2pm and 12 noon, allowing them to leave the house only 2 hours a day. A consequence of this is that Kevin is unable to adhere to a custody arrangement with his 5 years old son to see him after school each evening between 4 and 6pm.  Kevin has been prescribed as a suspected terrorist under the 2015 Act; he seeks to challenge to Act as incompatible with his convention rights under Article 5 and Article 8 European Convention on Human Rights. The Court of Appeal are required to rule on the compatibility of the 2015 Act with the Human Rights Act 1998, how is the Court of Appeal likely to rule? What steps might the government take after the Court of Appeals ruling?

Q2 – The Views of the World Newspaper wants to print a story about a famous boy band member’s (known as Tarquin) battle with alcoholism and drug addiction and his stay in a well-known treatment facility. They have published the story about the band member who has been attending Alcoholics Anonymous meetings including pictures of him leaving a local church where the meetings are being held. Tarquin to claim damages based on an Article 8 breach based upon the Views of the World publishing the story and the photographs. Explain the various human rights at stake within this scenario and how a UK court might go about deciding whether to protect the rights of the newspaper to print the story and the band member to prevent the story from being published.

A1: The Stay At Home Order imposed against Kevin is possibly incompatible with the Right to Liberty under Article 5 ECHR as well as Article 8 on his right to a private and family life.  In AP v Secretary of State for the Home Department [2010] 3 WLR 51, the Supreme Court held that an Article 8 restriction was relevant consideration in determining whether a Control Order (introduced by the Terrorism Act 2005)  breached Article 5, it was capable of being a decisive factor and capable tipping the balance.

In Secretary of State for the Home Department v JJ ([2008] 1 AC 385) in relation to a Control Order which included a curfew of 18 hours other restrictions than mere confinement could tip the balance in deciding whether the restrictions, overall, deprived the controlee of his liberty. Although individual Control Orders could be struck down in these circumstances, it appears that Section 12 of Terror Suspect Act 2015 may be incompatible with Convention rights since the curfews always last for 22 hours.

The Court of Appeal may make a declaration of incompatibility under section 4 of the Human Rights Act 1998. The most important effect of the declaration of compatibility is that it puts pressure on the government to change the law.  Furthermore, section 10 of the Human Rights Act 1998 provides for a fast-track procedure to allow the amendment of legislation which is found to be incompatible with a Convention right.  However, the government are not bound to amend the legislation; the most likely outcome of a section 4 declaration is amending legislation invoking the remedial order under section 10.

A2: Since the coming into force of the Human Rights Act 1998, citizens of the UK are now able to enforce the human rights outlined in the European Convention on Human Rights in a UK court. The relevant Articles that may be active in this scenario are Article 8 on the right to a private and family life, and Article 10 on the freedom to receive and impart information. These two rights are frequently found to be competing within the courts and a balancing act has had to be achieved between the two human rights.  In Campbell v MGN [2004] 2 AC 457, the UK House of Lords had to consider the claimants right to privacy against the Mirror Group Newspaper’s freedom of expression. To require the balancing of Article 8 and Article 10 rights the House of Lords held that there must be a reasonable expectation that the information would be confidential. It appears in the current case that treatment from drug and alcohol addiction may be sensitive to Tarquin and so there appears to be a reasonable expectation that he would not want this information to be made public. If this is the case then the court must balance Tarquin’s interests in keeping the information private with the Views of the Worlds interests in publishing it.

In Campbell the House of Lords recognised that although there was a public interest in reporting that she had a problem with drug addiction and was receiving treatment for it but claimed breach of confidentiality and compensation under s.13 Data Protection Act 1998 for the publication of further details. This additional information contained the details and nature of the claimant’s treatment and additional information revealed in the photographs. The House of Lords found that this additional information was confidential as it would have led a person of normal sensibilities to be experience significant discomfort if it was to be revealed. Thus in Tarquin’s case it is necessary to distinguish the information that is considered to be in the public interest, which may be the fact that he is experiencing problems with alcohol and drug dependency, but that the nature of his treatment (i.e. the attendance at an AA meeting) and information on the photographs which contained the location of that meeting is likely to be a breach of his Article 8 rights to privacy which would outweigh any public benefit that could be achieved through the Views of the World publishing his photos and enjoying a right to Freedom of Expression under Article 10 ECHR.

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