Chapter 6: Introduction to the Human Rights Act 1998 Flashcards
- Introduction
The Human Rights Act 1998 (HRA 1998) came into force in England and Wales on 2 October 2000. The Act incorporated most of the European Convention of Human Rights 1950 (ECHR) into UK domestic law. This meant that these rights could now be enforced by the UK courts. The UK was one of the fist signatories to the ECHR, having ratified it on 4 November 1950. The
ECHR came into force on 3 September 1953.
Dualist System
- A claim is made against it to an international court. Before the HRA 1998, persons wishing to
enforce their rights under the ECHR against the UK had to take their case to the European Court of Human Rights (ECtHR); or - The UK has incorporated international law rules into its domestic law by passing a statute. If this is done, UK domestic courts are able, and duty bound to enforce those rules. This has been
the effect of the HRA 1998.
1.1 Rationale for the HRA 1998
The main function of the HRA was therefore to incorporate the body of law in the ECHR into UK law so that the standards and obligations within it could be enforced in our domestic courts.
1.1 Rationale for the HRA 1998
The HRA has therefore allowed for a more practical and efficient system of domestic rights protection, as well as creating a positive statement of values as a key part of the UK’s constitution.
1.1 Rationale for the HRA 1998
The HRA was also important in remedying some of the perceived downsides of the previous system, where victims of human rights abuses had to apply to the ECtHR in Strasbourg, often
after long delays. Until the 1990s the UK was one of the leading states against which ECHR violations were found.
1.1 Rationale for the HRA 1998
Though the UK had a good record in following judgments of the Strasbourg court, the process was nevertheless embarrassing politically – it was described as ‘washing our dirty linen in public’.
2 Structure of the ECHR
As we examine sections of the HRA 1998, we will also refer to provisions of the ECHR. It is therefore
important to note where key ECHR provisions can be found. The ECHR is divided into three sections
Section I of the ECHR
Section I
* Article 1: The ECHR seeks to protect civil and political rights, as well as a limited number of social rights, by requiring that all contracting states to the ECHR must ‘secure to everyone within their jurisdiction‘ the rights and freedoms defined in the ECHR.
* Articles 2–14: Lists those rights and freedoms (see below).
* Article 15: applies to ‘derogations’ (see below).
* Article 57: applies to ‘reservations’ (see below)
Sections II and III
- Articles 19–57: These outline procedural aspects of the operation of the ECHR – these are less
relevant for this Workbook.
The protected ECHR rights, which the HRA has incorporated into UK law, can be divided into three
main categories. (The substance of several of these rights will be considered in more detail in later chapters.
2.1 Absolute rights
These are rights that cannot be legitimately interfered with by the state.
* Article 3: Prohibition on torture or inhuman or degrading treatment or punishment
* Article 4: Prohibition on slavery and forced labour (it applies in relation to human trafficking)
* Article 7: Provides that there shall be no punishment without lawful authority, with particular
regard to retrospective criminalisation and punishment
2.2 Limited rights
These rights can, in certain prescribed circumstances contained within the articles themselves, be legitimately interfered with by the state.
* Article 2: The right to life
* Article 5: The right to liberty and security of person
* Article 6: The right to a fair trial and fair legal process
2.3 Qualified rights
Within articles containing qualified rights, the first paragraph sets out the substantive right(s) and
the second paragraph lists the circumstances and methodology by which the rights may be lawfully interfered with by the state.
* Article 8: Right to respect for private and family life
* Article 9: Freedom of thought, conscience and religion
* Article 10: Freedom of expression
* Article 11: Freedom of assembly and association
2.3 Qualified rights
Generally, for the state to interfere legitimately with a qualified ECHR right, it must be shown that all three of the following requirements are met. They are contained in subsection (2) of each
article:
(a) The interference was prescribed by, or in accordance with, the law.
(b) The interference was in pursuit of a legitimate aim.
(c) The interference was necessary in a democratic society (ie proportionate).
(The tests at (a) to (c) will be considered in more detail in later chapters when we consider articles
5, 8 and 10.)
- Judicial principles and techniques of ECtHR
When the UK courts enforce the protections within the ECHR, through mechanisms provided by the HRA, they will necessarily make judgments about the correct interpretation of those protections.
In so doing, the UK courts have a duty to ‘take into account’ relevant ECtHR case law as per s 2
HRA 1998, (see below, for content on s 2). It is important, therefore, to consider some of the key principles and techniques developed by the ECtHR, which the UK courts consider and sometimes incorporate and develop (where relevant) in
the domestic context
We shall consider the following principles:
- The concept of the positive obligation
- The margin of appreciation doctrine
- The principle of proportionality
3.1 Positive obligation
The primary obligation on states under the ECHR is a negative one, meaning that the state is required to abstain from interfering with a human right. The concept of the positive obligation upon states was developed by the ECtHR in response to situations where the violating activity has been committed or could be committed not by the state, but by private individuals.
Duty to prevent violations
Under this principle, the state can, in certain circumstances, be under a duty to prevent the
violation of human rights being carried out by the relevant non-state actors.
There are a variety of ways in which positive obligations upon the state can arise. One way in which a positive obligation may need to be fulfilled is by contracting states enacting laws in their
domestic legal systems that prohibit, deter, and punish individuals who commit Convention violations.
X and Y v The Netherlands [1985] 8 EHRR 235
An example of this is provided by X and Y v The Netherlands [1985] 8 EHRR 235, where the lack of a specific criminal sanction in Dutch law allowed a man to evade conviction for the sexual assault of a girl with learning difficulties. The respondent state was held to have breached its positive obligation under article 8.
Key case: Osman v UK (2000) 29 EHRR 245
In this case, it was held that the positive obligation on the state was for its authorities (in this case
the police) to take preventative measures to protect an individual whose life was at risk from the
criminal acts of another private individual. However, the court stated that this obligation on the
authorities was subject to the following conditions
Key case: Osman v UK (2000) 29 EHRR 245
[I]t must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
Does not impose an excessive burden
The court acknowledged, in view of the operational choices that must be made in terms of priorities and resources, that the positive obligation must be interpreted in a way which does not impose an excessive burden on states and public authorities. It was found, on the facts, that the police could not be taken to have known that the lives of the Osman family were at real and
immediate risk from the perpetrator who shot and killed Mr Osman. There was, therefore, no breach of article 2.
Rabone v Pennine
Care NHS Trust [2012] UKSC 2
Both the High Court and Court of Appeal had held that the NHS Trust was not under a positive obligation to take reasonable steps to prevent a patient from committing suicide when being released from a psychiatric hospital on home leave. In reaching this conclusion, reliance was
placed on the fact that she was not formally detained under the Mental Health Act 1983 at the time.
Supreme Court overturn
On appeal, the Supreme Court overturned this finding. It held that the NHS Trust had assumed
responsibility and control over the patient, who had been admitted to the hospital when facing a
real and immediate risk of suicide.
Breach of Article 2.
It found that the Trust should have detained the patient under the MHA 1983 when she was
insisting on leaving the hospital, as there was a real risk that she would take her life when allowed home. The Trust had therefore failed to take reasonable steps to prevent the real and immediate risk of suicide in breach of Article 2.
3.2 Margin of appreciation
The ‘margin of appreciation’ doctrine reflects the subsidiary role of the ECHR in protecting human rights. The overall scheme of the Convention is that the initial and primary responsibility
for the protection of human rights lies with the contracting states parties themselves.
Allowed a certain measure of discretion
Contracting states are therefore allowed a certain measure of discretion when taking legislative,
administrative, or judicial measures that restrict ECHR rights. The doctrine is based on the assumption that contracting states have a better knowledge of the political, social, and cultural
traditions that influence their countries than the ECtHR does, and that this should be respected.
Nevertheless, the exercise of state discretion is not unlimited; it is still subject to ultimate supervision by the ECtHR.
Key case: Handyside v UK (1976) 1 EHRR 737
In this case, which concerned an interference with freedom of expression under article 10(1), the
ECtHR explained that: By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morality] as well as on the “necessity” of a “restriction” or “penalty” intended to meet them […]
Article 10(2)
Does not give the Contracting States an unlimited power of
appreciation. The court, which, with the Commission, is responsible for ensuring the
observance of those States’ engagements, is empowered to give the final ruling on whether a
“restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision
The application of the margin of appreciation to contracting states varies in each case and depends on its context.
Areas where ECtHR affords the state a broader discretion:
Decisions concerning:
* Morality and religion
* Public emergency
* National security
* Social, economic and environmental
policies
Areas where less discretion is afforded to the state:
Where individual rights are affected. For example:
* A person’s existence or identity
* A person’s liberty
* Legal rights
Only applicable in ECtHR cases
(Note that the margin of appreciation, strictly defined, only applies to ECtHR cases. It will not
apply to domestic UK cases, as these are being decided by a home court and not an
international, supervisory one.)
3.3 Principle of proportionality
In Soering v UK (1989) 11 EHRR 439, the ECtHR said:
[I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
Proportionality is a key principle of ECHR law
It is a standard that is expressly contained in the
qualified rights in articles 8 to 11. It also features as the standard within the test for limiting the right to life in article 2, and it has been interpreted as the correct standard applying to limitations on other articles such as article 6.
The principle of proportionality is multi-faceted
And the ECtHR employs slightly different
variations of the test with respect to the articles when considering whether a fair balance has been struck by the state between the general community interests on the one hand, and the protection of individuals’ human rights on the other. Proportionality will be discussed further in the context of the individual articles.
4 Key provisions of the HRA: obligations
The HRA 1998 created four key new obligations that have had a very significant impact on UK domestic law. These obligations are:
(a) Section 2 HRA: In determining legal questions, including common law development, the courts must take into account relevant ECHR case law.
(b) Section 3 HRA: Legislation must be read and given effect (by the courts), so far as is possible,
in a way that is compatible with ECHR rights.
(c) Section 4 HRA 1998: If the above (s 3) is not possible, the court may make a declaration of
incompatibility.
(d) Section 6(1) HRA 1998: It is unlawful for ‘public authorities’ (including courts and tribunals) to
act in a way that is incompatible with Convention rights.
Section 2 is considered further below. Sections 3, 4 and 6 will be considered in the next chapter.
- Section 2 HRA: ECHR decisions
Section 2(1) HRA states that:
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights […]
R (Alconbury
Developments Ltd) v
Secretary of State for the Environment [2001] UKHL 23
The first case to consider the meaning and extent of s 2(1) was R (Alconbury Developments Ltd) v
Secretary of State for the Environment [2001] UKHL 23, where the House of Lords held that, while
the case law of the ECtHR is not binding, domestic courts should follow any clear and consistent
jurisprudence unless there are special circumstances, or the decisions of the ECtHR would compel
a conclusion fundamentally at odds with the UK constitution.
R (Ullah) v Special Adjudicator [2004] UKHL 26: The mirror principle
This was followed by R (Ullah) v Special Adjudicator [2004] UKHL 26, in which Lord Bingham stated: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’.
This approach was sometimes called the ‘mirror principle’
5.1 Departures from mirror principle
R v Spear [2002] UKHL 31
Was the first decision in which the House of Lords declined to follow the
jurisprudence of the ECtHR, in relation to the question of whether UK military court-martials’ procedure was compliant with article 6
R v Horncastle [2009] UKSC 14
The decision in R v Horncastle [2009] UKSC 14 (which also related to article 6) also illustrates a
departure from previous Strasbourg case law.
Lord Phillips made the following comments about the HRA 1998, s 2(1):
There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the
Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court
and the Strasbourg Court
