Lecture 6: Human Rights Act 1998 and the English Legal System

Question 1

What are Human Rights?

Answer 1

“The rights you have by virtue of being human”

Question 2

Different understandings of legal rights: Claim Right

Answer 2

A claim to something that someone else has a correlating duty to provide.

Question 3

Different understandings of legal rights: Power Right

Answer 3

A power to do something e.g. To decide how property should be distributed or judges right to decide a case.

Question 4

Different understandings of legal rights: Liberties

Answer 4

A freedom to do something without interference – free speech, right to protest

Question 5

Different understandings of legal rights: Immunities

Answer 5

As a member of a club I have the right to enter without payment. A judge has the right not to be sued over a judicial decision.

Question 6

Human Rights v Legal Rights:

Answer 6

• Human rights may give rise to these sorts of legal claims but not all valid legal claims are ‘human rights.’
• Many people argue that Human Rights are themselves ‘normative’ statements which derive their authority from ‘moral’ not ‘legal’ considerations. We may want to give effect to human rights through law, but we can talk of the concept of a particular human right irrespective of whether it exists in international or domestic law.
• Legal positivists dispute this and say if it is not justiciable it is not a ‘right’.

Question 7

Human Rights and the meaning of ‘Being Human?’

Answer 7

Andrew Fagan “Human Rights do not exist to ensure human life per se but to protect and promote the conditions of a certain quality of life for all”

Question 8

Human Rights: Definition

Answer 8

“Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.” = UN Human Rights Office of the High Commissioner

Question 9

Limitations of Human Rights:

Answer 9

• Viewed as socio-political emanations with historic context.
• Definitions or understandings of who can claim ‘Universal rights’ and of what it means ‘to be human’ have changed over time.
• We tend only to formulate something in terms of a human rights where or when it is being denied. Take for granted the things we already ‘enjoy’ even if others don’t.

Question 10

International Regional:

Answer 10

• European Convention on Human Rights and Fundamental Freedoms 1950
• American Declaration of Human Rights and the Duties of Man 1948
• American Convention on Human Rights 1969
• African Charter of Human and Peoples Rights - Banjul Charter 1981 (Why later? Colonialism)
• ASEAN Declaration of Human Rights 2012

Question 11

Convention Rights:

Answer 11

Drafted in 1950 – reflected in outdated nature of some of the rights

No free-standing equality cause

Some rights deemed absolute rights

Some rights deemed qualified rights

Question 12

‘Convention rights’:

Answer 12

• Right to life (Art 2), prohibition of torture and inhuman and degrading treatment (Art 3), slavery (Art 4), right to liberty and security (Art 5), right to a fair trial (Art 6), non-retrospective application of the criminal law (Art 7)
• Qualified rights - Right to respect for private and family life, home and correspondence (Art 8); freedom of thought, conscience and religion (Art 9); freedom of expression (Art 10); freedom of assembly and association (Art 11)
• Right to marry and found a family (Art 12)
• Right to non-discrimination in the enjoyment of Convention rights (Art 14)
• Protocol 1 – right to property, right to education and right to free elections by secret ballot
Note also right to effective remedy in Article 13 - Art 13 not included as a Convention right incorporated into domestic law through HRA)

Question 13

The HRA 1998:

Answer 13

Act passed by Parliament (Westminster)

Came into force in 2000

Sections and articles different

Passed ‘as an act to give further effect to rights and freedoms guaranteed under the European Conventions on Human Rights’

Question 14

Why was the HRA passed?

Answer 14

• ‘An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights…’
• Individuals would not longer have to go to Strasbourg and the ECHR to get redress?

Question 15

Some Successful UK Applicants to Strasbourg:

Answer 15

• Jeffrey Dudgeon, 1981

* Nadia Eweida, 2013

Question 16

Key Legislative Developments:

Answer 16

• Ban on corporal punishment in schools – both state and private - Education (No 2) Act 1986, s. 47 and Education Act 1993 plus s. 131 31 School Standards and Framework Act 1998, linked to number of Strasbourg cases.
• Gender Recognition Act 2004 linked to Goodwin v UK, Application no. 28957/95 11 July 2002, ECtHR

Question 17

Indirect Horizontal Application:

Answer 17

State responsible for not protecting and enforcing legislation despite the fact case regards two individuals

Question 18

Position of ECHR in domestic law before HRA:

Answer 18

• Aid to construction of legislation in cases of ambiguity – see R v SoS for the Home Department, ex parte Brind [1991] 1 All ER 720 (per Lord Bridge)
• Informed the exercise of judicial discretion – e.g. AG v Guardian Newspapers Ltd [1987] 3 All ER 316
• Used to establish scope of common law – e.g. Derbyshire CC v Times Newspapers Ltd [1992] QB 770 (CtA) (Cf Derbyshire CC v Times Newspapers Ltd [1993] AC 534 (HLs))
• However, ECHR did not bind the actions of public bodies or restrict unambiguous legislation

Question 19

Bringing Rights Home; The HRA 1998:

Answer 19

White Paper - Rights Brought Home: The Human Rights Bill Oct 1997 (Cm 3782)

Received Royal Assent on 9 Nov 1998 and came into force in England and Wales on 2 Oct 2000

Human Rights Act cannot be impliedly repealed yet may allow express appeal

Question 20

The HRA and Public Authorities:

Answer 20

• s 6 Human Rights Act 1998

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(3) In this section “public authority” includes -
(a) a court or tribunal and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

Question 21

How can HRA be used by individuals?

Answer 21

• Convention Rights can be used both as a ‘sword’ and a ‘shield’:
• s 7 Human Rights Act 1998
• (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -
• (a) bring proceedings against the authority under this Act in the appropriate court or tribunal …
• (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
Note implications also for the development of the common law – e.g. law on confidence and privacy cases – remember courts are public authorities too.

Question 22

What or Who is a Public authority?

Answer 22

• Relatively narrow interpretation on what or who is a public authority
  • For example, R v Leonard Cheshire Homes [2002] EWCA civ 366
  • Biggest voluntary sector provider of homes for the disabled. Wanted to close a care home where residents had been promised they could live for life. Could residents use Article 8, right?
  • No not a public authority – even though lots of residents publicly funded so performing some functions ‘like’ a public authority.

Question 23

HRA: implications for the courts

Answer 23

• S. 2(1) ‘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 … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.’

Question 24

R v Horncastle [2009] UKSC 14:

Answer 24

• Lord Phillips: “The requirement to ‘take into account’ the Strasbourg jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. 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. This is such a case.” (para 11)

Question 25

Implications of HRA for precedent:

Answer 25

Doctrine of precedent remains

Possible to have different interpretations of ECHR cases

Supreme Court can change own precedent as a result if it wishes

Question 26

Deciding a case:

Answer 26

• Can that type of interference be justified? Is it ‘by law’ – (must be a precise law that could be known about)
• Is it necessary in a democratic society = proportionate? “Is it for a ‘legitimate reason.’ Does it meet a pressing social need”?
• Proportionately - Balancing of the person’s right with government duties
• If interference cannot be justified – if it is through statute could that statute be read so as to give effect to the right or not interfere?
• Interference might not be through statute might be a decision or a policy (this could still be by law) (not built into a statute) in which case it is covered by s.6 – Public authority must not Act in ways ‘ incompatible’ with convention rights.
• Article 8, when read together with Article 6:
• Must be “in accordance with the law”, and (ii) would be “necessary in a democratic society” looks at reason for interference and balances against impact on rights to see is it proportionate.

Question 27

In addition to court cases in deciding HRA cases:

Answer 27

In addition to court cases use of rights as lobby tools role of Equality and Human Rights Commission.

Power of Public Authority duty under s. 6 in changing policy.

Role of Joint Parliamentary Committee (House of Commons and House of Lords) on Human Rights in Parliament

Question 28

Parliament & HRA:

Answer 28

• S 10 - fast-track procedure for amendments to legislation following declaration of incompatibility
- E.g. R (H) v Mental Health Review Tribunal (North and East London) [2002] QB 1 (CtA)
• S 19 – Minister in charge of a Bill must make a statement to effect that in his view the relevant provisions are compatible with Convention rights (statement of compatibility) or make a statement to the effect that, although he is unable to make such a statement, he nevertheless wishes to proceed.

Question 29

What does the HRA mean for Parliamentary sovereignty?

Answer 29

In theory it remains intact.