9.1.2 Human Rights Act 1998 Lecture
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 from as a regional instrument within the European Convention on Human Rights and Fundamental Freedoms 1950. These rights are legally binding by States that have ratified the Convention and in the present day can be enforced against governments of Member States of the Council of Europe by other states parties or by individuals within the jurisdiction of a Member State. 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. This meant that complainants no longer need to take their case to the European Court on Human Rights to uphold their Convention rights, but could argue in a UK court that their human rights had been breached by government legislation. When a piece of legislation is challenged under human rights grounds the higher courts can either interpret the relevant law in accordance with the Convention right, or make a declaration of incompatibility if a provision was not capable of being interpreted in accordance with human rights guarantees. The Human Rights Act 1998 was introduced by the previous Labour government which was in power in the UK between 1997 and 2005. 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. The UK has promoted and supported civil liberties, which are residual, their implication is that citizens have the freedom to do anything that is not forbidden. They are a precarious legal concept and may be removed by express provisions, which override them in statute. Rights discourse has however gained ground since the end of the Second World War.
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. The United NationsInternational Covenant on Economic, Social and Cultural Rights 1966 is the main statement of second-generation rights at the international level. It includes rights such as the right to education, the right to a basic standard of living and the right to work.
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. They are incorporated into the African Charter on Human and Peoples Rights 1981, for example Article 24 states that "All peoples shall have the right to a general satisfactory environment favourable to their development" (Article 24 African Charter). Recently scholars have argued that this distinction between generations of human rights is artificial and is seen by some to suggest that some rights are more important than others.
The development of human rights was accelerated after the Second World War. It led to the formulation of a number of international bodies and human rights treaties designed to protect individual human rights, including the United Nations and the Council of Europe. Human rights are thought to be the outcome of the change of the relationship between the citizen and the state. L. Loughlin in The Ideas of Public Law(OUP, 2004: 114) describes the emergence within political thought of the right-bearing individual. This changes the traditional focus upon the rights of sovereigns and duties of citizens and inverts the relationship to place the emphasis on the rights of citizens and the obligations of government.
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. Like the discussion about the EU in Chapter 8, 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 cooperation 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 framers of the ECHR created rights that were important to the liberal democracies of Western Europe in the post Second World War period. They are 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. Some of the rights within the ECHR include the right to life (Article 2), the freedom from torture, cruel, inhuman and degrading treatment or punishment (Article 3), the right to a fair trial (Article 6), the right to a private and family life (Article 8) and the right to freedom of expression (Article 10).
Article 14 provides the basis upon which these and other 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. The State must inform the secretary general of the Council of Europe of measures taken to derogate and their reasons for doing so. The UK derogated from its obligations under the Convention after the terrorist attacks in Washington and New York on September 11th, 2001. The UK Parliament rushed through the Anti-Terrorism, Crime and Security Act 2011 (ATCSA 2011), part IV of which gave the Home Secretary the power to certify non-UK nationals who were suspected of being international terrorists and considered a risk to international security. Based on this certification, individuals could be deported or detained indefinitely.
Case in Focus A(and Others) v Secretary of State UKHL 56
In A (and Others) (the Belmarsh case) the House of Lords held that Section 23 of the ATCSA 2011 contravened Article 5 (the Right to Liberty and Security) and Article 14 (the prohibition of discrimination) ECHR. Article 5 had been suspended under the Human Rights Act 1998 (Derogation) Order 2001, SI 2001/3644. The Special Immigration and Appeals Commission allowed an appeal on the grounds that Article 23 was discriminatory against non-nationals. The House of Lords upheld the Immigration Commission's findings holding that Article 23 was discriminatory and that the derogation Order was disproportionate to the level of threat of terrorism in the UK and was not necessary to combat the terrorist threat. Seven of the Law Lords held that the derogation Order did not meet the requirements of Article 15 that there was a "public emergency threatening the life of the nation". (Article 15 ECHR).
As a result of the House of Lords ruling the UK government did not seek to renew the measures under section 21 and 23 ATCSA. The case was appealed to the ECtHR who upheld the House of Lords' ruling on the illegality of the derogation, finding a violation of Article 5(1), Article 5(4) and Article 5(5) (A v United Kingdom(2009) 49 EHRR 29).
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 sate 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. The function of the Commission was to
- enquire into an alleged breach of the Convention in inter-state cases; or
- receive petitions from individuals or NGOs alleging a violation by the State; (the State has to accept individual petitions)
- decide if the case was admissible;
- fully investigate the facts and attempt to achieve a friendly settlement in the case;
- if d is not achieved, the Commission would send a report to the State party and the Committee of Ministers
- the case could be disposed of politically within the Committee of Ministers, or be passed to the ECtHR.
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 court is now comprised of the number of judges that are equal to the number of the states parties to the Convention (Art 20 ECHR), with a judge from each country (Art 22 ECHR). The main effect of this Protocol was to allow applicants to apply directly to the ECtHR. There are a number of formations for the judges sitting in the ECtHR, including a single-judge formation, committees of three judges, chambers of 7 judges and the Grand Chamber of 17 judges (Article 26 ECHR).
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. Some of these changes include:
- The judges now serve for non-renewable terms of nine years
- Single judges make decisions on admissibility (Article 27)
- A committee of three judges can make a decision on admissibility and on the merits when the case related to well established law (Article 28)
- A case of seven judges makes a merit decision (Article 29)
- In cases of particular importance the Grand Chamber of 17 judges might sit (Article 30)
- There is a procedure for referral of a chamber decision to the Grand Chamber in certain decisions of general importance or serious cases of interpretation(Article 43)
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. By 2000, there had been 64 decisions in the Court against the UK. Between 2002 and 2004 the Court found 69 violations of the ECHR by the UK, a friendly settlement was also reached in a further 13 cases.
Article 2 cases (the Right to Life), the UK was found to be in breach of Article 2 in the following cases:
- In McCann v UK (1995) 21 EHRR 97 Article 2 had been violated following the use of lethal force by the security forces in Gibraltar
- Jordan v UK (2003) 37 EHRR 52 - there was no effective investigation of the death of the applicants son by the police
- In Pretty v UK (2002) 35 EHRR 1, the Court found that there was no right to die within Article 2 where a terminally ill applicant wished assisted suicide
Article 3 cases (freedom from Torture, Inhuman and Degrading Treatment or Punishment)
- Republic of Ireland v UK (1978) 2 EHRR 25 - interrogation of IRA suspects
- Tyrer v UK (1978) 2 EHRR 1 - corporal punishment of juveniles in the Isle of Man
- Soering v UK(1989) EHRR 439 - concerns the requests of the USA to UK for the extradition of a suspect in a murder case who would be subject to the 'death row phenomenon' which was found to be a violation of Article 3, despite the fact that the UK would not be directly involved in the Article 3 breach
Article 5 (the right to liberty) and Article 6 (the right to a fair trial) cases
- In X v UK (1981) 4 EHRR 188 - certain procedures for the detention of mental health patients were found to breach Article 5
- Brogan v UK (1988) 11 EHRR 117 - the detention of terror suspects under the Prevention of Terrorism (Temporary Provisions) 1984 for up to 7 days without judicial authority was a breach of Article 5
- Caballero v UK(2000) 30 EHRR 643 - the denial of bail for certain offences under the Criminal Justice and Public Order Act 1994
- In Murray v UK(1996) 22 EHRR 29, Article 6 was breached where an applicant was denied access to the police for 48 hours in police detention
- V v UK (2000) 30 EHRR 121 - 2 minors were convicted of murder in a trial conducted in front of media publicity
- Steel and Morris v UK (2005) 41 EHRR 403, the denial of legal aid to two environmental activists to defend themselves against McDonalds in a libel action, was found to be a breach of Article 6
Article 8 (the right to a private and family life) cases
- Dudgeon v UK - legislation in Northern Ireland making homosexual conduct a crime, held to be a breach of Article 8.
- In Malone v UK (1984) 7 EHRR 14, and Halford v UK (1997) 24 EHRR 523 the practice of phone tapping was held to infringe Article 8
Article 10 (Freedom of Expression)
- Sunday Times Ltd v UK (1979) EHRR 245 - contempt of court infringed Article 10
- Handyside v UK (1976) 1 EHRR 737 law on obscene publications was not in breach
- Observer, Guardian and Sunday Times v UK (1991) 14 EHRR 153 Article 10 violation due to restraints on publication of a book by retired security services officer
- Goodwin v UK (1996) 22 EHRR 123, the requirement of a journalist to disclose their sources was a breach of Article 10
Article 11(Right to Protest and Freedom of Association)
- In Young, James and Webster v UK (1981) 4 EHRR 38, three former BR employees were dismissed for refusing to join a trade union, had their Article 11 rights breach by legislation on the closed shop in 1974 and 1976
- In Wilson v UK (2002) 35 EHRR 523 a former employee of the Daily Mail had suffered discrimination because he refused to agree to individual negotiation for pay and had his Article 11 rights violated
Case in Focus Hirst v United Kingdom (No.2 ) 92005] ECHR 681, (2006) 42 EHRR 41
The ECtHR held that a complete ban on prisoners voting under section 3 of the Representation of the People Act 1983, irrespective of the length of their sentence, the nature of or the gravity of their offence was a breach of Article 3 of Protocol 1. This provision guarantees the right to regular, free and fair elections as well as universal suffrage. The British government attempted to introduce legislation giving prisoners the right to vote, but it has been rejected by Parliament and the former PM David Cameron has made clear that despite the ruling, prisoners will not be given the right to vote, as previous governments had also refused to comply with the Court's ruling.
The importance of this case is not just in the Courts decision but also in the consequences of the subsequent refusal of the UK government to comply with the ruling. The UK's refusal to abide by the decision is damaging for human rights across Europe and within the UK.
Exam Consideration: You should have a working knowledge of the Articles within the ECHR and understand that they are Convention rights. It is correct to refer to them as Articles of the ECHR, as opposed to of the HRA, which includes them as Schedule 1 to the Act. The substantive rights are contained within the ECHR, the procedural matters regarding how these rights are to be incorporated into UK law is contained within the HRA 1998.
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 including the UDHR, the ICCPR, the ICESCR and the ECHR. There have also been a number of international institutions, which have established multilateral human rights treaties and these institutions have a key role in the negotiation and drafting of treaties between states.
Section 2 Human Rights Act 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. These include judgments or advisory opinions of the ECtHR, an opinion of the European Commission (no longer in operation) under Article 31 ECHR, Article 26 or 27(2) ECHR or a decision of the Committee of Ministers under Article 46 ECHR.
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  2 AC 532
Under section 47(1) Prison Act 1952 a prisoner was excluded from his cell while daily search of his cell was conducted. Officers could examine, but not read, any legally privileged correspondence. The applicant sought judicial review of the decision to require an examination of his legally privileged correspondence in his absence. A breach of Article 8(1) was found to have occurred, the policy of examining the prisoners privileged correspondence was found to have gone beyond to achieve the legitimate aims (prison security) of s. 47(1).
Proportionality often involves the balancing between the benefits achieved by doing something and the harm that can be done with interfering with an individual's Convention rights in the process.
Case in Focus Campbell v MGN  2 AC 457
Naomi Campbell claimed that her Article 8 rights had been infringed by the publication of details concerning treatment she had received from drug addiction. The House of Lords were required to balance her Article 8 rights with the freedom of the press to expression and the public to receive information under Article 10 ECHR. This balance needed to be achieved when the publisher of the information knew that it was to be confidential. When two Convention rights were in play, the proportionality or breaching one has to be balanced with the breach of the other. In this case there was found to be an Article 8 breach because the publication amounted to a breach of confidence.
Section 3 Human Rights Act 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  1 AC 45
The House of Lords was asked to interpret s.41 Youth and Criminal Justice Act 1999 in a manner which is compatible with Article 6 ECHR. Section 41 concerns the admissibility of evidence in rape cases relating to consent and the cross-examination of the complainant regarding sexual history evidence. The House of Lords established that, where failure to admit the evidence would endanger the fairness of the trial under Article 6, where that test is satisfied the evidence should not be excluded.
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 Human Rights Act 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, these include:
- The Committee of the Privy Council
- The Courts-Martial Appeal Court
- The High Court of the Judiciary
- The Court of Session
- The High Court
- The Court of Appeal
- The UK Supreme Court
Case in Focus: Wilson v First Country Trust Limited (No.2)  3 WLR 42 - A hearing was heard into whether section 127 Consumer Credit Act 1974 was incompatible with Article 6 ECHR and Article 1 of the First Protocol. It was confirmed in this case that a court has no jurisdiction to make declarations of incompatibility in relation before the HRA came into forces. Section 127 was not incompatible with Article 6(1) or Article 1 of the First Protocol and that reference to Hansard will rarely be appropriate when determining compatibility under section 4 or interpretation under section 3 HRA.
Case in Focus: A and Others v Secretary of State from the Home Department UKHL 56
The applicants challenged their detention under section 23 Anti-Terrorism Crime and Security Act 2001. The detainees were all foreign nationals who had been certified by the Secretary of State as terrorist suspects. The House of Lords declared that section 23 was incompatible with Articles 5 and 14 ECHR as it was disproportionate to any legitimate aims pursued. It was also found to be discriminatory on the grounds of nationality and immigration status.
As a result of A and Others the regime was repealed by the Prevention of Terrorism Act 2005, which put into place a new regime of Control Orders in which suspected terrorists had constraints placed on their movements, but were not detained in prison.
Exam Consideration: You should consider the implications of Article 4 for parliamentary sovereignty in that Parliament should be able to legislate in any way that it chooses but the HRA 1998 restricts this and has the effect of declaring legislation incompatible. The government is not under any obligation to take action after a declaration of incompatibility under section 4 HRA 1998. Section 4(6) specifically states that a declaration of incompatibility does not affect the validity, operation or enforcement of the law.
Section 6 Human Rights Act 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), it includes courts and tribunal and any person or body whose functions are those of a public nature. It does not include either House of Parliament, or a person acting in their capacity in connection with proceedings in Parliament.
Exam Consideration: In problem questions you may be required to discern whether the defendant is a public authority within the meaning of section 6(3) HRA 1998. This term is more expansive than appears obvious and relevant case law should be revised carefully.
Case in Focus L v Birmingham City Council  UKHL 27
The House of Lords held that a private care home providing care and accommodation for elderly people under contract with a local authority was not exercising "functions of a public nature", within section 6(3)(b) HRA 1998. The House of Lords found that the 1948 National Assistance Act made a clear distinction between a local authority with a statutory duty to arrange care and accommodation for those who could not arrange it themselves and a private company providing residential care services with which the local authority had contracted in order provide those services.
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 Human Rights Act 1998
Section 7(1) HRA 1998 allows a prospective victim to bring proceedings against an authority in an appropriate court or tribunal. Section 7(5) requires that the proceedings be brought within one of the act complained of taking place, or longer period if the court or tribunal considers it to be equitable. Victim means anyone effected by the act or omission that leads to the breach of the Convention right.
Case in Focus: Matthews v Ministry of Defence  1 AC1163
The claimant claimed damages due to the commission of the tort of negligence. The MoD attempted to rely upon section 10 Crown Proceedings Act 1947 to escape tortious liability. The question for the Court of Appeal was whether section 10 was compatible with Article 6 ECHR (the right to a fair trial) and the right of access to a remedy under Article 6(1). It was held that section 10 imposed as a matter of substantive law and not as a procedural bar to which Article 6 might apply. The claimant was found to have to civil right to which Article 6 might apply in this case.
Section 8 Human Rights Act 1998 - Remedies
Remedies once a breach of a Convention right by a public authority is available, the remedies included under Article 8(1) are: damages, declarations, injunctions, quashing orders, mandatory orders, and prohibiting orders.
Case in Focus: Marcic v Thames Water Utility  2 AC 42
The Thames Water Utility was a statutory sewerage undertaker under the Water Industry Act 1991. As such it was a public authority under s (3) HRA 1998. Marcic’s property was regularly flooded with sewage, he claimed damages in nuisance and for breach of Article 8 ECHR. The public authority in this case is subjected to an elaborate scheme of regulation, which includes an independent regulator with powers of enforcement whose decisions are subject to judicial review. The claimant had no claim for damages against Thames Water under the HRA.
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