The HRA and ECHR
Describe about The Human Rights Act 1998 offers a framework for the enforcement of rights which would otherwise be lacking in order to ensure their effective protection?
Introduction: It is claimed that the Human Rights Act, 1998 provides a framework that can be used to enforce rights that would not have been available otherwise. In order to evaluate the accuracy of this comment, different provisions of the Human Rights Act have been analyzed along with the relevant case law. In this context, it needs to be noted that the human rights act provide a clear statement regarding the rights and responsibilities of the citizens. At the same time, the Act also requires that the public services should also be provided by keeping in mind the human rights of the citizens.[1] These goals were also mentioned at the time of the introduction of the Act.
The HRA and ECHR: The Human Rights Act was enacted in October 2008 incorporates the rights and freedoms that have been provided by the European Convention of Human Rights (ECHR). The Convention is an international treaty that was drafted by the Council of Europe in 1950. It also needs to be mentioned that the main responsibility regarding the interpretation and application of this convention has been provided to the European Court of Human Rights and deceit of the Court is at Strasbourg. In the first article of this convention, it has been made obligated for all the members of the convention to ensure that the rights that have been mentioned in the convention are available to each and every person present in their jurisdiction.[2] In this way, apart from having effective legislations, a responsibility has also been imposed on the member states to put in place procedures that can provide effective remedies if there is a breach of the rights provided by the Convention. But in case of the UK, the Human Rights Act had been introduced with an extra purpose, apart from being a primary legislation.[3] As a result of the absence of a written constitution in the UK, it was believed by the government that the Human Rights Act will be able to play the role of a Bill of Rights that will be available to the citizens of UK and also to all the people who are living in the UK. At the same time, the government also believed that the Act will provide a new symbol to the citizens that can be used for uniting under a common vision of human rights.[4]
Before the Human Rights Act
Before the Human Rights Act: Before the introduction of the Human Rights Act, the rights provided by the ECHR were only considered as a persuasive authority but the records were not under an obligation to give effect to these rights.[5] In the same way, the Convention only acted in the domestic law as an aid to construe the statutes although there was a presumption regarding the compliance that it was not the intention of the Parliament to legislate against the rights provided by the convention. In this context, in Waddington v Miah,[6] the earlier rule provided by the court was that while interpreting ambiguous provisions of any legislation, it can be presumed that the Parliament did not intend to enact any legislation that is against the international obligations of the UK, including the ECHR. However, there are certain limitations associated with these presumptions as mentioned in Ex Parte Brind[7] where it was held that this compliance presumption does not include the provisions of the statutes that were not ambiguous. In this way, the interpretation of the rights provided by the Convention was only limited to the statutes that were ambiguous in nature.
Section 3 of the HRA: According to section 3(1) of the HRA, it has been mentioned that so far as possible, the primary as well as the subordinate legislations are to be read and given effect in the manner that is compatible with the rights provided by the ECHR. The provisions of HRA are rather broad and at the same time, these provisions are not as detailed as are the provisions of other statutes and as a result, it appears that a wide range of discretion has been provided to the courts by the Act. At the same time, it also appears that section 3 of the HRA restricts the powers of the courts because it provides that the statutes can be interpreted by the courts in a way that is compatible with ECHR rights so far as it is possible for the courts to do so. But in practice, it can be said that the judiciary has been provided a carte blanche by the Parliament to decide when it is not possible to integrate a particular statute in a way that is compatible with the rights provided by the Convention.[8] The words used in section 3(1)[9] are vague and as a result, they do not provide any clearer outline regarding the limits of such possibility.
Section 3 of the HRA
HRA Incorporates the ECHR Rights: It needs to be mentioned that a large part of the rights provided by the European Convention on Human Rights have been incorporated by the HRA into the English law. Due to this reason, it is considered as a ‘living document’ and the courts are required to interpret it in view of the present conditions so that it reflects the changes taking place in the society. The method that is adopted by the courts to interpret the provisions of HRA is the purposive approach. According to this approach, the purpose of the legislation has to be considered while interpreting it. The approach is somewhat similar to the mischief rule of statutory interpretation and as a result, sometimes the purposive approach towards integration is sometimes also referred to as the modern mischief rule.
Ensuring Human Rights by HRA: According to the Human Rights Act,[10] if a person believes that there has been an unlawful interference with his human rights, the first court or tribunal that hears the case is required to take into account the human rights standards and such court or tribunal is also required to make sure that the decision taken by it, does not interfere with the rights provided by the Act. Similarly if a person believes that his or her human rights have been breached by any organization that is involved in public functions, such person can assert the rights provided by the ECHR before all the courts and tribunals in the UK.[11] At the same time, such person is also allowed to expect that these rights will be taken into account by all the courts and tribunals in all types of cases, ranging from employment disputes to maintenance proceedings. Similarly if the person has away all the opportunities for appeals, but the person still believes that there has been an interference with the human rights of such a person and the courts in UK have not properly applied the human rights standards, it is still possible for such a person to take the case to the Strasbourg court for the purpose of enforcing these rights.
The legal position is that the Parliament has the capacity to pass whatever law it considers proper and the legality of such a law cannot be carried by the courts.[12] This legal position has not been directly changed by the Human Rights Act but it had made a significant impact on it. Therefore even if a court comes to the conclusion that a particular primary legislation is not in accordance with the provisions of ECHR, such legislation cannot be declared by the court as being invalid. Therefore, no power has been granted to the court to strike down primary legislation on this ground. However, the court has been allowed to issue a declaration of incompatibility in which it mentions that the particular legislation is not in accordance with the provisions of ECHR.[13] Therefore, the power still rests exclusively with the Parliament, although it is highly probable that a declaration made by the court regarding the noncompliance of the legislation will result in the alteration of the legislation by the Parliament. For this purpose, the Human Rights Act has provided a fast track procedure that can be used to alter any legislation after it has been declared by the courts as being contrary to the provisions of the Convention.
HRA Incorporates the ECHR Rights
During the 20th century, the issue of the universality of human rights had emerged prominently. The UN declaration of human rights was also based on the notion that the basic values and principles related with human rights were of a universal nature. However, in Al-Skeini and others (Respondents) v. Secretary of State for Defence,[14] the House of Lords discussed the territorial jurisdiction of the Act.
HRA Requirement of Compatibility: Another relevant provision of the Human Rights Act is section 19. According to this section, while introducing a bill in the Parliament, a Minister is required to make a statement that the particular bill complies with the provisions of the Convention or not. Ultimately, it is the desire of the government if it wants the House to proceed with the Bill or not. Therefore, in such a case the Parliament will not pass the legislation that is compatible with the provisions of the Convention unless it is clear that certain things being done.
The Human Rights Act also allows the courts to find their own ways through which they can interpret the provisions of the convention and also start developing a distinctive law related with human rights in the UK. It also needs to be noted in this regard that although the Human Rights Act provides that the court should consider the decisions made by the Court of Human Rights in Strasbourg but the courts are not under an obligation to follow these decisions in all the matters being heard by them. However the decisions given by the Strasbourg court can prove to be of great assistance and are significant for all those who are involved in the process of applying the Convention rights and standards related with human rights.
However the leading decisions reveal that the courts have given preference to wider public interest as against the rights of individuals.[15] For example it has been decided by the courts in a number of cases that a balance needs to be established between the rights related with privacy and the rights of the general public. For example, Article 8 provides protection to the privacy of an individual in the form of the right to privacy but the courts have stated that sometimes this right can be breached and people can be subjected to surveillance or where telephone calls can be intercepted or the newspapers may publish accounts of their private life. In this regard he needs to be noted that article 8 provides protection to the right of family life. This means that while deciding cases related with custody or adoption, the court should take into account the right to family life of all the persons involved in the litigation.
Ensuring Human Rights by HRA
Another significant provision is present in Article 10 which provides the right to freedom of expression. It has been assured by Article 10 that every person has a right to express his or her views and opinions and there should be no interference from the state in this regard. This right also guarantees the freedom of press that is considered as one of the basic requirements of an effective democracy. Similarly this freedom also provides a ride to the artists to express themselves with the help of their work. Similarly the site also includes a right granted to the individuals to receive and impart information.
Obligation of Courts under HRA: As mentioned above, according to Article 2,[16] it is required that the courts should take into account, the previous decisions given by the European Court of Human Rights.[17] This provision also has an impact on the procedure of the doctrine of precedent in the English legal system due to the reason that it successfully authorizes the courts to overrule the previous English authority on a particular matter that is in conflict with a decision given by the European Court of Human Rights. Such a situation has significant implications for the precedents that are related with the cases where a particular statute has been interpreted by the court without referring to the ECHR jurisprudence. In this regard section 3 of the HRA provides that the courts have to consider legislation in such a way, so as to give effect to the rights provided by the convention. The meaning of this power granted by section 3 is that the courts can invalidate the particular implementation of a statute that was accepted on earlier occasions but was made without resort to the ECHR.[18]
In this way, it can be said that the human rights act, 1998 provides a framework that can be used by individuals to enforce rights that would otherwise be lacking for the purpose of ensuring the effective protection of these rights.
Bindman, G. ‘Recognising Rights – A Look at the Progress of the Human Rights Bill & Analysis of the Impact of the Government’s Rushed Anti-Terror Legislation’ (1998) 95 Law Society Gazette 22
Fitzpatrick, B. ‘Court of Appeal – Reverse Burden & Article 6(2) of the European Convention on Human Rights: General Guidance’ (2005) 69 JoCL 16
Dickens, J. ‘Being ‘The Epitome Of Reason’: The Challenges For Lawyers & Social Workers In Child Care Proceedings’ (2005) 19 IJLP&F 73
Fitzpatrick, B. ‘House of Lords: Reverse Burden & Article 6(2) of the European Convention on Human Rights: Drunk in Charge; Terrorism Offence’ (2005) 69(6) JoCL 478
Cases
Al-Skeini and others (Respondents) v. Secretary of State for Defence [2007] UKHL 26
Aston Cantlow Parochial Church Council v Wallbank [2003] UKHL 37
Bellinger v Bellinger, 2003 UKHL 21
Cullen v. Chief Constable of the RUC [2003] 1 WLR 1763
Pinnock v Manchester City Council [2011] UKSC 6
R (on the application of AM v the Director of Public Prosecutions [2014] EWSC 38
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