HRA and protection of fundamental rights Flashcards
Intro
Fundamental freedoms that everyone should have.
Inalienable as they cannot be taken away; universal as they apply to everyone and interdependent as each right relies on the others to contribute to a person’s dignity.
The Human Rights Act 1998 (HRA) incorporates most of the rights from the European Convention on Human Rights (ECHR) into UK law, allowing UK citizens to argue human rights cases in domestic courts.
Before HRA
Before the HRA came into force, there was limited protection of human rights. Traditionally, in the UK, individuals have benefitted from residual freedoms. This means that what individuals are not allowed to do is set out in law, but what they are allowed to do is not. Residual freedoms can be difficult to enforce in court, as illustrated by Malone v MPS where, the court held that phone tapping could be justified and that the right to privacy was not recognised by English and Welsh law.
Also, prior to the introduction of the HRA, although the UK was a signatory of the ECHR, individuals could not argue human rights cases in English and Welsh courts but had to apply to the European Court of Human Rights (ECtHR) in Strasbourg instead. The right of individual petition – which allows UK citizens to argue their cases in Strasbourg – was not granted until 1966. Additionally, this right to individual petition was only available when the person had exhausted all domestic remedies. Therefore, the protection offered by the ECHR to fundamental human rights was inaccessible to many, because very few people had enough time and money to go through the long and expensive process of taking a case to the ECtHR.
Convention
The Convention was also not binding in UK courts as a source of law in, as shown by R v Secretary of State ex parte Brind (1990). The UK did however sometimes respond positively to the ECtHR rulings; in the Thalidomide case, the Contempt of Court Act 1981 was passed after the ECtHR declared our common law contempt of court illegally removed an individual’s right to freedom of expression under Article 10.
HRA in force
However, the introduction of the HRA which came into force on 2 October 2000 had a major impact on the protection of human rights. Following the implementation of the HRA most of the rights listed in the ECHR were incorporated into domestic law, giving individuals positive rights that are harder remove than residual freedoms.
Section 7
Under s.7 of the HRA, individuals can now argue their human rights cases in domestic courts – provided the claim is brought within one year – rather than having to go to Strasbourg. For example, in the Steinfeld and Keidan v SSID, the Supreme Court issued a declaration of incompatibility in relation to the Civil Partnership Act 2004 which prevented opposite sex couples from entering a civil partnership. The court held that this was incompatible with Articles 8 and 14. This section has allowed the HRA to have a great impact on the protection of fundamental human rights in the UK; bringing a human rights claim is much easier as the process of applying in domestic courts is more affordable and accessible. Examples of cases which illustrate the impact of the HRA on the protection of fundamental rights include protestors Gillan and Quinton who were successful in their case after being stopped and searched with no grounds for suspicion. This case led to a change in anti -terrorism laws. Another case is S and Marper which led to changes in the law in relation to the retention by the police of individuals’ DNA when they have not been convicted of a crime.
Section 19
Under s.19, all legislation should have a statement of compatibility. This means that before the second reading of a Bill, a Minister must make a statement about whether the Bill is compatible with ECHR rights. However, s.19 is heavily criticised as under s.19(b), Parliament can pass a law even when Ministers cannot declare the Bill compatible with human rights. Two examples of this occurring are the Local Government Bill (2000) and the Communications Bill (2003). Both of these Bills are now acts, suggesting that the protection offered by s.19 and the HRA can be quite easily undermined as proposed laws do not always have to be compatible with human rights to be passed.
Section 3
While this criticism is valid, there are many ways that the HRA protects human rights. For example, s.3 states that judges must attempt to interpret the law compatibly with the ECHR ‘as far as it is possible to do so’ which should maintain Parliamentary sovereignty. The case which set down the rules of interpreting laws under s.3 was Ghaidan v Godin-Mendoza. According to this case, words in the Act that illegally remove human rights can be changed for example, in the Ghaidan v Godin-Mendoza case, the word ‘spouse’ was interpreted to include same-sex partners. Secondly, changes to the act can also be made under s.3 by restricting the meaning of a word to one definition or using a wide definition. Judges can even add words to the section! However, judges are not allowed to change fundamental parts of the law, and if these parts are incompatible with human rights, then s.4 should be used instead. This is illustrated by the case of Anderson which concerned the role of the Home Secretary in setting tariffs for mandatory life sentences. However, this section is criticised as some feel it gives unelected judges too much power and it undermines Parliamentary sovereignty. For example, in R v A , Lord Steyn effectively rewrote s.41 Youth Justice and Criminal Evidence Act (1999) to allow courts to admit evidence of a complainant’s previous sexual history whenever it was considered necessary to ensure a fair trial. This is much criticised as the concept of Parliamentary sovereignty was undermined. This concept states that Parliament is the only body with the authority to change the law. The Government’s recent proposal for reform of the HRA suggests that s.3 should be replaced so that Parliament has a greater say in the interpretation of laws. This proposal clearly conflicts with the doctrine of the separation of powers and many critics have argued that independent judges are best placed to interpret laws and decide whether a restriction is proportionate or not.
Section 4 (and section 10)
Furthermore, under s.4 HRA a declaration of incompatibility may be issued by judges when a law is found to be illegally removing human rights and the judge cannot use s.3 to interpret the law so it is compatible with human rights. If a declaration of incompatibility is issued the offending legislation can be sent back to Parliament, often using the ‘fast track’ method set out in s.10, where Parliament may alter the act to ensure it no longer unlawfully removes human rights. An example of a law being issued with a declaration of incompatibility is the case of Bellinger v Bellinger in which the House of Lords issued a declaration of incompatibility against a law preventing transgender people from marrying, which illegally removed Article 8. This declaration of incompatibility eventually led to the Gender Recognition Act (2004). However, it is argued that these sections can undermine the protection offered to human rights. Criticism has centred upon the fact that s.4 does not allow judges to strike down primary laws, undermining protection offered to fundamental human rights. Although judges can issue a declaration of incompatibility, there is no guarantee that this will be acted on by Parliament. In addition, S.10(2) HRA only requires the Ministers to initiate the ‘fast track’ process of changing a law when there is a compelling reason, and a declaration of incompatibility is not always considered a compelling reason. Therefore, it could be argued that the HRA does not always protect fundamental human rights as incompatible acts could continue removing human rights under s.10(2) despite judges issuing a declaration of incompatibility.
Section 6
Under s.6, a person can sue a public authority which illegally removes human rights. This section also makes it unlawful for public authorities to act in a manner incompatible with the ECHR. The HRA defines public authorities as ‘a court or tribunal and any person certain of whose functions are functions of a public nature’. These include organisations such as the police, the NHS, and other organisations funded by taxpayers and only conduct public functions. There are also hybrid public authorities, which have both public and private functions but can only be sued under s.6 when they are performing public functions. The courts have struggled to define these hybrid authorities, as seen in YL v Birmingham City Council which involved a private care home housing local authority residents paid for by the taxpayer. The residents claimed that this made the care home a hybrid public authority, but the Court disagreed, saying the provision of care/accommodation for those unable to arrange it by themselves is not necessarily a public function.
Horizontal direct effect
While private bodies cannot be sued directly under s.6, they could be sued using the implied horizontal direct effect, which is a concept created by the courts to allow individuals to sue a private body for removing human rights. Under this concept, the individual takes the body to court using British law such as law of contract and then claim their human rights during the case. The court must hear human rights arguments as they are a public body and so could be sued for removal of human rights if thye refused. This principle was illustrated in Douglas and Jones v Hello! Ltd. This shows that the HRA has had a major impact on the protection of fundamental human rights in the UK as it (indirectly) allows individuals to sue both public and private bodies, ensuring that a wide variety of organisations comply with human rights as they do not want to be sued.
Section 2
Another important provision of the HRA is s.2 which provides that judges must ‘take into account’ precedents set by the ECtHR. This means precedents are strongly persuasive but not legally binding as confirmed by the case of Alconbury Ltd. Also, ECtHR precedents should not be followed if there is a conflicting domestic precedent, as shown in Leeds City Council v Price unless the domestic ruling is blatantly removing human rights. Section.2 has therefore been criticised by some commentators as the problems of affordability that were prevalent prior to the HRA may occur again as people may end up taking their cases all the way to the ECtHR after not getting the answers they want in domestic courts (as domestic precedents are being used rather than ECtHR ones), and so vulnerable individuals may be unable or reluctant to take their cases to the ECtHR.
However, in Ullah the House of Lords stated that when the precedent from the ECtHR is clear and there are no domestic precedents, then the ECtHR ruling should be followed and in fact ECtHR precedents are often applied by the Supreme Court anyway. This is demonstrated by the case of Re P and Others which concerned a law preventing unmarried couples from adopting. The Supreme Court followed the decision of the ECtHR showing the impact the HRA has had on protection of rights. Despite the clear wording of s.2, and the fact that precedents of the ECtHR are persuasive only, judges have been criticised for giving too much weight to the decisions of the ECtHR S.2 has also been described as a ‘rogue section’ by the former Attorney General, Dominic Grieve. Indeed, the Government’s current consultation on the HRA contains proposals to amend s.2 so that judges have regard to the rights in the ECHR and domestic court decisions only. This seems an unnecessary reform given that the decisions of the ECTHR are only persuasive.
Criticism 1
There are also many other criticisms of the HRA. For example, the HRA is an ordinary act of Parliament like all the others. However, in the case of the HRA this could pose a major problem as due to the principle of Parliamentary sovereignty, Parliament could simply repeal the HRA whenever they wished, and the protection of human rights would revert to the position pre October 2000. Individuals would still have the protection of the ECHR, but protection would be much more limited. This undermines the impact of the HRA upon the protection of fundamental human rights in the United Kingdom.
Criticism 2
The HRA has become more controversial following September 11th 2001. The Act was placed under pressure by the right-wing press and the Conservative Party where it was discredited because it was being used by suspected terrorists such as Abu Qatada and was stopping counter terrorist measures. Other controversial decisions are Hirst v. the UK (No.2) and cases involving human rights claims following the war in Iraq
Criticism 3
Also, a claim can only be brought by a victim (defined as a person who is directly affected by the alleged infringement). However, unless pressure groups or trade unions are directly affected by the unlawful removal of human rights, they cannot lodge claims, which could pose a problem as individuals may be unable or unwilling to bring claims to the court without support. However, some argue that this issue has been partially solved by the introduction of the Commission for Equality and Human Rights (CEHR) which came into force in October 2007 and was created by Part 3 of the Equality Act 2006. Others may argue that the creation of the CEHR doesn’t actually resolve this issue though, as the CEHR can only promote and monitor human rights and can’t investigate or enforce changes when human rights are breached. They can, on the other hand, advise and assist victims.
Criticism 4
In addition, it could be argued that the impact the HRA has had on the protection of fundamental human rights in the UK are limited due to the way rights are formulated. There are three types of rights: absolute rights (which can never be removed), limited rights (which can be removed only under specific situations listed in the article), and qualified rights (which can be removed as long as the removal is set down in law, necessary and proportionate). Limited and qualified rights can quite easily be removed – as seen very recently when individuals’ right to freedom of assembly, among others, was removed at the height of the COVID-19 pandemic. It could be argued therefore that the HRA does not provide that much protection because most rights in the HRA are non absolute.
