WikiPortallus: Human Rights Act 1998.html

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 an Act of Parliament means they have no other choice. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. 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 to 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). An individual can still take his case to the Strasbourg court as a last resort.

Historical context

The Convention was drafted by the Council of Europe after World War II. Sir David Maxwell-Fyfe was the Chair of the Council's legal and administrative division from 1949 to 1952, and oversaw the drafting of the European Convention on Human Rights. It was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strong traditions of freedom and liberty in the United Kingdom. As a founding member of the Council of Europe, the UK acceded to the European Convention on Human Rights in 1950. However it was not until Harold Wilson's government in the 1960s that British citizens were able to bring claims in the European Court of Human Rights. Over the 1980s, it was widely perceived that the executive misused its power and that, with movements like Charter 88 (which invoked the 300th anniversary of the Glorious Revolution in 1688 and the Bill of Rights 1689) a British Bill of Rights was needed to secure a human rights culture at home.

The Conservatives had historically been unwilling to incorporate these rights into domestic law, partly because it felt the common law provided sufficient protection for the rights and freedom of citizens and partly because legal systems in the British colonies did not comply with international human rights standards.^{citation needed}

Structure of the Act

The Human Rights Act has two central features. First it places a duty on all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights (s.3(1)). The limits to judicial creativity have been much debated but it is now clear that the courts cannot interpret Acts of Parliament in a way that would undermine their clear meaning. Where it is not possible to interpret an Act in compliance with the Convention, a declaration of incompatibility must be issued by the court under s.4, stating how legislation appears to breach human rights.

The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. It also includes the Courts. However, it does not include Parliament when it is acting in its legislative capacity.

Stronger provisions exist for the devolved Scottish administration under the Scotland Act 1998, which provides that the Scottish Executive and the Scottish Parliament have no power to do anything contrary to the ECHR.

Despite the fact that the Act states that it applies to public bodies the Human Rights Act has had increasing influence on private law ligitation between invididual citizens leading some academics to state that it has horizontal effect as well as vertical effect (as in disputes between the state and citizens). This is because s6(1) of the Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens.

Even though the Act's interpretative instruction to interpret legislation as compatible with convention rights as so far as is possible in s3(1) applies only to statute and not common law, it has been argued that s6 of the Act shows that the only law which should not be subject to human rights obligations is incompatible legislation. Therefore the common law could be developed in a way which is compatible with the Convention in an incremental fashion. However, the Human Rights Act cannot be used to create new courses of action in private law.^[1]

Rights protection under the Act

The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights.^[2] For these purposes public authority includes any other person "whose functions are functions of a public nature."^[3] It also explicitly includes the Courts.^[4] Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1).^[5] In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights.^[6]

Section 7 enables any person, with standing, to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. A person will have standing to do so provided they would satisfy the "victim test" stipulated by Article 34 of the Convention.^[7] This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, Judicial Review.

If it is held that the public authority has violated the claimant's Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."^[8] This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.^[9]

However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.^[10] The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights."^[11]

Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it.^[12] The power to do so is restricted to the higher Courts.^[13] Such a Declaration has no direct impact upon the continuing force of the legislation^[14] but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.^[15]

Repeal of the death penalty

The Act (section 21(5)) completely repealed the death penalty in the United Kingdom, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences (although these provisions had not been used for several decades). (The death penalty for treason had already been abolished by the Crime and Disorder Act 1998.)

Note that this provision was not required by the European Convention (protocol 6 permits the death penalty in time of war; protocol 13, which prohibits the death penalty for all circumstances, did not then exist); rather, the government introduced it as a late amendment in response to parliamentary pressure.

Notable human rights case law

Criticism

From the Conservative right

During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard declared their intention to "overhaul or scrap" the Human Rights Act. According to him "the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head".^[16]

He cited a number of examples of how, in his opinion, the Human Rights Act had failed: "the schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his right to education; the convicted rapist given £4000 compensation because his second appeal was delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who thumb their nose at the law allowed to stay on green belt sites they have occupied in defiance of planning laws".^[17]^[18]

Some commentators have criticised Howard's claim that a prisoner serving a life sentence was allowed to obtain hard-core pornography in prison. In R (on the application of Morton) v Governor of Long Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him access to hard-core pornography claiming that the governor's policy was a breach of his Article 10 right to freedom of expression; however, the claim was actually rejected.

Politicised judges?

One of the major criticisms of the Human Rights Act prior to its introduction that it would result in unelected judges making substansive judgments about government policies and "legislating" in their amendments to the common law resulting in an usurpation of Parliament's legislative supremacy. In the area of judicial review for example the case of R (on the application of Daly) v Secretary of State for the Home Department highlights how the introduction of a proportionality test borrowed from ECHR jurisrudence has allowed a greater scrutiny of the substansive merits of a governments policy meaning that judicial review has become more of an appeal than a review.

A Bill of Rights for Britain?

Howard's successor as Leader of the Opposition, David Cameron, has also vowed to scrap the Human Rights Act if he is elected, instead replacing it with a 'Bill of Rights' for Britain.^[19]

In 2007, the human rights organisation JUSTICE released a discussion paper entitled 'A Bill of Rights for Britain?', examining the case for updating the Human Rights Act with an entrenched Bill [2].

Left-wing criticism

In contrast, some have argued that the Human Rights Act does not give adequate protection to rights because of the ability for the government to derogate from Convention rights under article 15 especially in relation to terrorism legislation. Recent cases such as R (ProLife Alliance) v. BBC [2002] EWCA Civ 297 have been decided in reference to common law rights rather than statutory rights leading to the possibility of judicial activism.^[20]

Terrorism

Senior Labour politicians have criticised the Human Rights Act and the willingness of the judiciary to invoke declarations on incompatibility against terrorism legislation:

Former Home Secretary John Reid argued that the Human Rights Act was hampering the fight against global terrorism in regard to controversial control orders:

Footnotes

^ Murray Hunt, The Horizontal Effect of the Human Rights Act (Where is this from?)
^ Section 6(1)
^ Section 6(3)(b)
^ Section 6(3)(a)
^ The full text of Schedule 1 (along with that of the rest of the Act) can be found at the Office of Public Sector Information Website: [1]
^ Section 2
^ Section 7(7)
^ Section 8(1)
^ Cf. sections 8(2)-(5) and Section 9(2)-(3) which provides additional protection to the Courts.
^ Section 6(2).
^ Section 3(1)
^ Section 4
^ Section 4(5) provides that a Declaration of Incompatibility can be made by: the House of Lords, the Judicial Committee of the Privy Council. In England, Wales and Northern Ireland by the Court of Appeal or the High Court. And in Scotland by the High Court of Justiciary, when not sitting as a trial court, or the Court of Session. The power is also available to the Courts-Martial Appeal Court.
^ Section 4(6)(a)
^ Section 10(2)
^ "MPs attacking political correctness". Retrieved on 2007-07-27.
^ "Judges must bow to the will of Parliament". Retrieved on 2007-07-27.
^ "Time to liberate the country from Human Rights laws". Retrieved on 2007-07-27.
^ "Cameron 'could scrap' rights act". Retrieved on 2007-04-02.
^ Public Law: Adam Tomkins p192
^ Reid warning to judges over control orders | Politics | The Guardian

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