The Human Rights Act 1998
- The Human Rights Act 1998 incorporates the majority of rights protected under the European Convention on Human Rights into domestic law.
- Before the Act, Convention rights were enforceable by an application to the European Court of Human Rights (ECtHR) in Strasbourg.
- That process, however, was slow and there were several procedural hurdles to overcome before an application would be considered.
- The Court of Human Rights remains the final arbiter in the protection of rights, and where domestic law fails to provide a remedy for violations of Convention rights, recourse may be made to the Court. In this chapter we examine the role of the Convention, the structure of the Human Rights Act 1998 and its status.
- The Act has already made a substantial impact on domestic law.
The European Convention on Human Rights
- The Council of Europe was established in 1949, and it was under this body that the European Convention on Human Rights (ECHR) . was drafted and approved by member states in 1951.
- The ECHR forms part of international law. Accordingly, it was not enforceable within the domestic legal order of the UK until incorporated into law by statute.
- The Human Rights Act 1998 marks this transition. It is technically incorrect to speak of `incorporation of the Convention’, for what has occurred under the Human Rights Act 1998 (HRA) is that certain Convention rights protected by the ECHR have become enforceable under domestic law, according to the terms of the HRA.
- The ECHR remains wider in scope than the Human Rights Act. Prior to the HRA, domestic courts could use the Convention as an aid to interpretation but nothing more.
- See for example Waddington v Miah [197412 All ER 377, R v Secretary of State for the Home Department ex parte Brind  1 All ER 720 and Derbyshire County Council v Times Newspapers Ltd  1 All ER 1011.
- It is particularly important to understand that the ECHR is quite distinct from the European Union and Community – many students are confused about this.
- The ECHR has its own institutional structure and was brought into being by the Council of Europe, which was established in 1949 to promote and protect human rights in Europe.
- The European Union has its own Court of Justice which interprets and enforces Community rights and obligations.
- The European Court of Justice (the ECJ) has no jurisdiction to enforce Convention rights.
- Equally the Court of Human Rights has no jurisdiction to enforce Community law rights.
- However, Convention rights are not irrelevant to the European Union and Community: the Treaties on European Union stress the commitment of the Union to the protection of rights. The European Union is not, however, a signatory state to the ECHR.
The substantive rights protected under the ECHR
You need to sit down with the text of the Convention (see Blackstone’s Statutes) and read the Articles with care. In outline the Convention provides for the following rights:
- the right to protection of all Convention rights within domestic legal systems (Article 1)
- the right to life (Article 2)
- the right to freedom from torture or inhuman or degrading treatment (Article 3)
- freedom from slavery (Article 4)
- freedom of the person (Article 5)
- the right to fair trial (Article 6)
- freedom from retrospective criminal liability (Article 7)
- the right to respect for private and family life (Article 8)
- the right to freedom of thought, conscience and religion (Article 9)
- freedom of expression (Article 10)
- freedom of peaceful assembly and association (Article 11) the right to marry and found a family (Article 12)
- the right to an effective remedy for the breach of Convention rights (Article 13)
- the right to enjoy rights and freedoms under the Convention without discrimination (Article 14).
- In addition the Convention Protocols provide, inter a1ia, for the peaceful enjoyment of possessions, the right to education and the right to free elections.
Limitations and restrictions
- Some Convention Articles contain an absolute prohibition, but you will see that the majority of rights may be qualified and restricted by the law of the member state, and also that the Court of Human Rights allows a degree of individual state interpretation of rights – the `margin of appreciation’.
- Note also the concept of derogation, discussed below, which enables a state to `suspend’ the application of a Convention right under certain circumstances.
- Absolute rights
The absolute rights are:
o Article 3, the prohibition against torture
o Article 4, the prohibition against slavery
o Article 7, no punishment without law (non-retrospectivity)
o Article 9, freedom of thought, conscience and religion.
- The fact that these are unqualified rights, however, does not mean that they are not capable of interpretation which may expand or restrict their application.
- For example, in Ireland v United Kingdom (1979-80) 2 EHRR 25, the matter in question related to whether interrogation techniques by police and security forces in Northern Ireland in relation to suspected terrorists amounted to torture, or inhuman or degrading treatment.
- The Court of Human Rights, in its interpretation of torture decided that the conduct fell short of the standard inherent in torture, but did amount to inhuman and degrading treatment.
- Rather differently, but again illustrating the flexibility in the enjoyment of rights, the Court of Human Rights has ruled that Article 9 (freedom of conscience, etc.) does not encompass the rights of prisoners to express their religious beliefs if that would compromise prison policy (X v Austria (1965] YB VIII).
- The remaining Convention Articles contain qualifying criteria. Article 12,
- for example, protects the right to marry and found a family, but qualifies this by restricting the right to marry to marriage according to the domestic law of the relevant state.
- The limitations take two principal forms.
The first relates to legitimate aims that a state may pursue which restrict the protection of rights. These are:
ü the interests of national security, public safety or the economic well-being of the country
ü the prevention of disorder or crime
ü the protection of health -or morals, the protection of the rights or freedoms of others
ü the prevention of disclosure of information received in confidence
ü maintaining the authority and impartiality of the judiciary.
The second classification of limitations is according to `necessity’, i.e. that the limitations are required to be `necessary in a democratic society.
ü This criterion introduces the concept of proportionaliry, which is an established tool of judicial interpretation under European law.
Proportionality requires that the action taken (the restriction) must be no greater than is necessary to achieve a legitimate aim.
- An example is seen in Steel v United Kingdom (1999) 28 EHRR 603. Steel involved the rights of protesters to demonstrate (freedom of expression protected under Article 10) and the powers of the police to arrest and detain demonstrators for behaviour likely to cause a breach of the peace.
- In relation to two of the three incidents under consideration, the Court held that the behavior (stopping a grouse hunter from firing his gun and standing in front of construction machinery in order to prevent land clearance for a motorway development) represented a real danger to public order and that the arrests and detention were not disproportionate to the legitimate objectives of the police (the prevention of disorder).
- In relation to the third incident, however (an entirely peaceful demonstration outside a conference centre involving no more than holding placards and distributing leaflets), the arrests and detention could not be justified: they were disproportionate to the need for public order.
- Article 15 permits a state to derogate from the Convention `in time of war or other emergency threatening the life of the nation’. The effect of this is that for the period of derogation, the Convention right is not protected.
- Derogation was used by the UK government in relation to the Prevention of Terrorism (Temporary Provisions) Acts 1974-1989, permitting the detention of terrorist suspects for up to seven days without access to a court of law, which was otherwise in contravention of Article 5 (the right to liberty). See Brogan v United Kingdom (1988) 11 EHRR 117.
- Article 15 has not been incorporated into domestic law under the Human Rights Act 1998. Instead a statutory procedure for derogation has been introduced under section 14. That power has been used (e.g. in 2002) to suspend Article 5 in relation to suspected terrorists.
the margin of appreciation
- Because of the differing constitutional and legal arrangements within member states, the Convention allows a degree of flexibility and discretion in the manner in which rights are protected.
- It is for the Court of Human Rights to rule on the margin of appreciation.
- Greater flexibility may be allowed in relation to issues touching on family life and religion than to political rights such as freedom of expression which underpin all liberal democracies.
Applicants under the ECHR
- Applications may be made by individuals or by contracting states.
- The latter are known as inter-state applications. An example of an inter-state application is that of Ireland v United Kingdom, mentioned above.
The Court of Human Rights (ECtHR)
- In order to speed up the consideration of applications, the institutions of the ECtHR were reformed with effect from November 1998.
- Previously there had been a Commission which considered admissibility. This was abolished and all applications are now considered by the Court.
Structure of the ECtHR
- Judges of the Court of Human Rights are elected by the Parliamentary Assembly of the Council of Europe from nominations proposed by member states.
- The number of judges is equivalent to the number of contracting states. Judges are appointed for a renewable six-year term of office
- Court Committees, which consist of three judges, deal principally with whether an application is admissible.
- Chambers comprise seven judges and can decide on the admissibility and merits of individual applications and inter-state applications.
- There is also a Grand Chamber, consisting of seventeen judges, which has jurisdiction to consider cases that raise serious questions `affecting the interpretation of the Convention’ and cases where the interpretation of the Chamber might have `a result inconsistent with a judgment previously delivered by the Court.
- It also has jurisdiction to reconsider a Chamber decision, at the request of one of the parties, in exceptional circumstances where a decision raises a `serious question affecting the interpretation or application of the Convention… on a serious issue of general importance’. An example of this jurisdiction being used is seen in Kingsley v United Kingdom (2002), discussed in Barnett, p: 520.
Procedure under the ECHR
- Before the Human Rights Act 1998, the only avenue to complain about Convention violations was through an application made to the Court of Human Rights in Strasbourg (in France).
- A number of procedural hurdles had to be overcome. These remain relevant in relation to cases which will now be heard in the domestic courts under the Human Rights Act 1998 where no `effective remedy’ (on which see below) is granted.
- You need to note these in outline only. In order for an application to be admissible, it must satisfy the following criteria:
- all available domestic judicial or administrative remedies must have been exhausted
- the complaint must be made within six months of exhausting all remedies
- the complaint must raise a genuine grievance, and must not be based on any `frivolous or vexatious’ basis or for any improper purpose
- it must relate to a right protected by the Convention
- it must not assert the right to protection of one right which could defeat the protection of another
- it does not raise an issue which has already been ruled upon by the Court.
The Human Rights Act 1998
- As noted above, the Human Rights Act (HRA) makes Convention rights enforceable in domestic courts and tribunals.
- It came into effect in England and Wales in 2000, but Convention rights were enforceable in Scotland from 1998 under the Scotland Act 1998 and Northern Ireland under the Northern Ireland Act 1998. Neither Article 1 (which requires states to give effect to Convention rights) nor 8 was incorporated. Instead section 8 of the HRA empowers the courts to grant remedies (see further below).
- The Convention rights are contained in Schedule 1 of the Act.
The constitutional status of the Act
- Consistent with the concept of parliamentary sovereignty the Human Rights Act has no higher status in law than any other statute.
- It can accordingly be amended or repealed, although the non-legal, moral and political constraints would make this difficult. Parliamentary supremacy is also protected in that judges may not declare Acts of Parliament invalid, but may grant declarations of incompatibility’ (see below).
- This device also protects the separation of powers between the judiciary and Parliament.
The structure of the Act
- Section 1 and Schedule 1 set out the Convention rights which are enforceable. Sections 2 and 3 relate to interpretation of Convention rights.
- Section 2 requires courts and tribunals to `take into account’ judgments, decisions and opinions made under the ECHR.
- Section 3 requires courts and tribunals to interpret primary and subordinate (or delegated) legislation `so far as it is possible to do so’ in a way that is compatible with convention rights. Note however that section 2 does not affect the validity or continued operation or subordinate legislation where primary legislation makes the .removal of any incompatibility impossible.
Declarations of incompatibility and remedies
- Section 4 provides for declarations of incompatibility.
- Only the High Court and above, and in Scotland the High Court of Justiciary and Court of Session, may make declarations of incompatibility.
- In order to enable the government to put its case to the Court, where the Court is considering whether to make a declaration of incompatibility, the Crown is entitled to notice and to be joined as a party to the proceedings (section 5).
- Section 6 relates to acts of public authorities. Note carefully the definition in section 6(3) (a) and (b): public authorities include courts and tribunals and `any person certain of whose functions are functions of a public nature’ (but does not include Parliament).
- Accordingly, whether a body is within the scope of the Act depends not on whether that is a state-owned body, but rather on whether or not a body is exercising functions of a public nature. It is also implicit in section 6 that a public body may be within the Act when exercising public functions but not within the Act when it is not performing public functions. See Barnett, pp. 632-634.
- Remedies are provided for under section 8. The court may award such remedy as `it considers just and appropriate’ but this is limited to remedies which are within the jurisdiction of the particular court or tribunal.
- The interpretation of section 8(3) HRA was considered in R (KB) and others v Mental Health Review Tribunal. The Queen’s Bench Division ruled that damages for breaches of human rights under statute should be no lower than they would be for a comparable tort and should so far as possible reflect the English level of damages.
- Under section 10, where a court makes a declaration of incompatibility and there is no appeal in progress a Minister may make amendments to the offending legislation to remove the incompatibility if he or she `considers that there are compelling reasons’.
- When a bill is before either the House of Commons or House of Lords, the Minister in charge of its progress must declare whether or not the provisions of the bill are compatible with Convention rights (section 19). Note however, that Parliament in its sovereignty may proceed to enact the bill even if it is declared not to comply with Convention rights.
The impact of the Human Rights Act 1998
- The important thing to appreciate is the sheer range of issues which have raised Convention rights. While few declarations of incompatibility have been issued, you will see that manyindividuals have successfully argued that procedures employed by public bodies haw infringed their rights.
- It has always been the case that Articles 5 and 6 of the Convention (the right to liberty and right m fair trial) in criminal justice matters have proved particularly productive of challenges, and this remains the case following implementation of the HRA.
- Two early challenges which may have far-reaching implications came from the Channel Islands and from Scotland when the position of the equivalent of the Lord Chancellor in the Channel Islands and the powers of temporary judges in Scotland were challenged on the basis that their reappointment was dependent upon the executive.
- What is also noteworthy, however, is how these Articles have produced challenges to mental health law and practice and to family law, particularly in relation to the powers of local authorities with regard to children. Note also how the right to privacy (Article 8) has reached into prison policy.
- Look carefully also at Article 10 (freedom of expression) and how this relates to the right to privacy.
- It was the intention of Parliament that freedom of expression should not be used to develop a right of privacy under domestic law – a right which has never had free-standing recognition. Section 12(4) of the HRA was designed to ensure that freedom of the media was ensured even against claims to invasions of privacy.
- The case law, however, seems to indicate that the reverse has happened, and that courts are quickly developing a right to privacy which is encroaching on press freedom.