Human Rights Act 1998 Explained

Short Title:Human Rights Act 1998
Parliament:United Kingdom Parliament
Long Title:An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.
Statute Book Chapter:[1998] c 42
Royal Assent:9 November 1998
Commencement:2 October 2000
Amendments:Sub-s (1): in para (c) words “Article 1 of the Thirteenth Protocol” in square bracketssubstituted by SI 2004/1574, art 2(1).Date in force: 22 June 2004: see SI 2004/1574, art 1.Sub-s (4): words “Secretary of State” in square brackets substituted by SI 2003/1887, art9, Sch 2, para 10(1).Date in force: 19 August 2003: see SI 2003/1887, art 1(2).
Related Legislation:Human Rights Act 1998 (Amendment) Order 2004, SI 2004/1574 (made under sub-s (4)).
Status:Current
Original Text:http://www.legislation.gov.uk/ukpga/1998/42/enacted
Revised Text:http://www.legislation.gov.uk/ukpga/1998/42

The Human Rights Act 1998 (c 42) is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.[1] Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg.

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). An individual can still take his case to the Strasbourg court as a last resort.

Historical context

Convention was drafted by the Council of Europe after World War II. Sir David Maxwell-Fyfe was the Chair of the Committee on Legal and Administrative Questions of the Council's Consultative Assembly from 1949 to 1952, and oversaw the drafting of the European Convention on Human Rights. It was designed to incorporate a traditional civil liberties approach to securing "effective political democracy", from the strong traditions of freedom and liberty in the United Kingdom. As a founding member of the Council of Europe, the UK acceded to the European Convention on Human Rights in March 1951. However it was not until Harold Wilson's government in the 1960s that British citizens were able to bring claims in the European Court of Human Rights. Over the 1980s, it was widely perceived that the executive misused its power and that, with movements like Charter 88 (which invoked the 300th anniversary of the Glorious Revolution in 1688 and the Bill of Rights 1689) a British Bill of Rights was needed to secure a human rights culture at home.

The Labour government incorporated the European Convention on Human Rights into law through the Human Rights Act 1998. The 1997 white paper "Rights Brought Home"[2] stated:

It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.

Structure of the Act

The Human Rights Act places a duty on all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights (section 3(1)). The declaration does not invalidate the legislation, but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act. As of August 2006, 20 declarations had been made, of which 6 were overturned on appeal.

The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. However, it does not include Parliament when it is acting in its legislative capacities.

Section 3

See main article: Section 3 of the Human Rights Act 1998. Section 3 is a particularly wide provision that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights which are also part of the Human Rights Act.[3] This interpretation goes far beyond normal statutory interpretation,[3] and includes past and future legislation, therefore preventing the Human Rights act from being impliedly repealed.[4] Courts have applied this through three forms of interpretation, "reading in"  - inserting words where there are none in a statute; "reading out" where words are omitted from a statute; and "reading down" where a particular meaning is chosen to be in compliance.[5] They do not interpret statutes to conflict with legislative intent, and courts have been reluctant in particular to "read out" provisions for this reason. If it is not possible to so interpret, they may issue a declaration of incompatibility under section 4.[6]

Sections 4 and 10

See main article: Sections 4 and 10 of the Human Rights Act 1998. Sections 4 and 10 allows courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation so that their provisions are compatible with the articles of the European Convention of Human Rights, which are also part of the Human Rights Act.[7] In these cases, interpretation to comply may conflict with legislative intent.[8] It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility.[7]

A declaration of incompatibility is not binding on the parties to the proceedings in which it is made,[7] nor can a declaration invalidate legislation.[9] Section 4 therefore achieves its aim through political rather than legal means, including through Section 10 which allows the government to amend legislation without full legislative approval.[9] A remedial order can only be made after a declaration of incompatibility or a similar finding of a European court with all appeals must have been complete or expressly renounced.[10] Parliament has used Section 10 to make small adjustments where possible to bring legislation into line with Convention rights although entirely new pieces of legislation are sometimes necessary.[11]

Other sections

Despite the fact that the Act states that it applies to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect (as in disputes between the state and citizens). This is because section 6(1) of the Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens.

Rights protection under the Act

See main article: European Convention of Human Rights. The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights.[12] For these purposes public authority includes any other person "whose functions are functions of a public nature."[13] It also explicitly includes the Courts.[14] Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1).[15] In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights.[16]

Section 7 enables any person, with standing, to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. A person will have standing to do so provided they would satisfy the "victim test" stipulated by Article 34 of the Convention.[17] This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, judicial review.

If it is held that the public authority has violated the claimant's Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."[18] This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.[19]

However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.[20] The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights."[21]

Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it.[22] The power to do so is restricted to the higher Courts.[23] Such a Declaration has no direct impact upon the continuing force of the legislation[24] but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.[25]

Abolition of the death penalty

The Act (section 21(5)) completely abolished the death penalty in the United Kingdom, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences (although these provisions had not been used for several decades). (The death penalty for treason had already been abolished by the Crime and Disorder Act 1998.)

Note that this provision was not required by the European Convention (protocol 6 permits the death penalty in time of war; protocol 13, which prohibits the death penalty for all circumstances, did not then exist); rather, the government introduced it as a late amendment in response to parliamentary pressure.

Notable human rights case law

Criticism

From the Conservative right

During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard declared their intention to "overhaul or scrap" the Human Rights Act. According to him "the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head".[27]

He cited a number of examples of how, in his opinion, the Human Rights Act had failed: "the schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his right to education; the convicted rapist given £4000 compensation because his second appeal was delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who thumb their nose at the law allowed to stay on green belt sites they have occupied in defiance of planning laws".[28] [29]

Some commentators have criticised Howard's claim that a prisoner serving a life sentence was allowed to obtain hard-core pornography in prison. In R (on the application of Morton) v Governor of Long Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him access to hard-core pornography claiming that the governor's policy was a breach of his Article 10 right to freedom of expression; however, the claim was actually rejected.

The schoolboy referred to by Mr Howard was suing for compensation, not to be allowed back into the classroom, since he was already a university student at the time of the court case.[30] In addition, the claim was rejected.[31]

Politicised judges?

One of the major criticisms of the Human Rights Act prior to its introduction was that it would result in unelected judges making substantive judgments about government policies and "legislating" in their amendments to the common law resulting in a usurpation of Parliament's legislative supremacy. In the area of judicial review for example the case of R (on the application of Daly) v Secretary of State for the Home Department highlights how the introduction of a proportionality test borrowed from ECHR jurisprudence has allowed a greater scrutiny of the substantive merits of a government's policy, meaning that judicial review has become more of an appeal than a review.

The interpretative obligation under s(3)(1) to read primary legislation as Convention compliant, so far as is possible, is not dependent upon the presence of ambiguity in legislation.[32] This means that s(3) of the Human Rights Act could require the court to depart from the unambiguous meaning that legislation would otherwise bear subject to the constraint that this modified interpretation must be one “possible” interpretation of the legislation.[33] Paul Craig argues that this results in the courts adopting linguistically strained interpretations instead of issuing declarations of incompatibility.

However the criticism that judges are legislating can be countered by the fact that courts are unable to interpret legislation in a way which is "inconsistent with a fundamental feature of the legislation". Neither can judges interpret legislation in such a way that would bring about a far-reaching change that would be best dealt with by Parliament.

Journalistic freedom

In 2008 the editor of the Daily Mail criticised the Human Rights Act for allowing, in effect, a right to privacy at English law despite the fact that Parliament has not passed such legislation. Paul Dacre was in fact referring to the indirect horizontal effect of the Human Rights Act on the doctrine of breach of confidence which has moved English law closer towards a common law right to privacy.[34] In response the Lord Chancellor Lord Falconer stated that the Human Rights Act had been passed by Parliament, that people's private lives needed protection and that the judge in the case had interpreted relevant authorities correctly.[35]

A Bill of Rights for Britain?

Following controversial rulings from both the European Court of Human Rights and the Supreme Court of the United Kingdom[36], David Cameron again suggested a British Bill of Rights[37] . The government commission set up to investigate the case for a Bill of Rights had a split of opinion.[38]

Howard's successor as Leader of the Opposition, David Cameron, vowed to repeal the Human Rights Act if he was elected, instead replacing it with a 'Bill of Rights' for Britain.[39] Following the 2010 general election, the Conservative – Liberal Democrat Coalition Agreement says that the issue will be investigated.[40]

In 2007, the human rights organisation JUSTICE released a discussion paper entitled A Bill of Rights for Britain?, examining the case for updating the Human Rights Act with an entrenched bill.[41]

Left-wing criticism

In contrast, some have argued that the Human Rights Act does not give adequate protection to rights because of the ability for the government to derogate from Convention rights under article 15 especially in relation to terrorism legislation. Recent cases such as R (ProLife Alliance) v. BBC [2002] EWCA Civ 297 have been decided in reference to common law rights rather than statutory rights leading to the possibility of judicial activism.[42]

Terrorism

Senior Labour politicians have criticised the Human Rights Act and the willingness of the judiciary to invoke declarations on incompatibility against terrorism legislation. Former Home Secretary Dr John Reid argued that the Human Rights Act was hampering the fight against global terrorism in regard to controversial control orders:

There is a very serious threat – and I am the first to admit that the means we have of fighting it are so inadequate that we are fighting with one arm tied behind our backs. So I hope when we bring forward proposals in the next few weeks that we will have a little less party politics and a little more support for national security.[43]

See also

Notes

External links

Notes and References

  1. http://www.justice.org.uk/images/pdfs/HRAINT.PDF
  2. Home Office, “Rights Brought Home: The Human Rights Bill” (Cm 3782, 1997) para 1.14
  3. Hoffman, Rowe (2006). p. 58.
  4. Hoffman, Rowe (2006). p. 59.
  5. Hoffman, Rowe (2006). pp. 60 - 61.
  6. Hoffman, Rowe (2006). pp. 60 - 62.
  7. Web site: Human Rights Act 1998: Section 4. legislation.gov.uk. 11 January 2011.
  8. Hoffman, Rowe (2006). p. 60.
  9. Hoffman, Rowe (2006). pp. 64. - 65.
  10. Hoffman, Rowe (2006). pp. 65. - 66.
  11. Hoffman, Rowe (2006). p. 66.
  12. Section 6(1)
  13. Section 6(3)(b)
  14. Section 6(3)(a)
  15. The full text of Schedule 1 (along with that of the rest of the Act) can be found at the Office of Public Sector Information Website: http://www.opsi.gov.uk/acts/acts1998/80042--d.htm#sch1
  16. Section 2
  17. Section 7(7)
  18. Section 8(1)
  19. Cf. sections 8(2)-(5) and Section 9(2)-(3) which provides additional protection to the Courts.
  20. Section 6(2).
  21. Section 3(1)
  22. Section 4
  23. Section 4(5) provides that a Declaration of Incompatibility can be made by: the House of Lords, the Judicial Committee of the Privy Council. In England, Wales and Northern Ireland by the Court of Appeal or the High Court. And in Scotland by the High Court of Justiciary, when not sitting as a trial court, or the Court of Session. The power is also available to the Courts-Martial Appeal Court.
  24. Section 4(6)(a)
  25. Section 10(2)
  26. News: Speeding loophole is legal 'nightmare'. 15 July 2000. BBC Online. BBC News. 29 June 2011.
  27. Web site: MPs attacking political correctness. 2007-07-27.
  28. News: Judges must bow to the will of Parliament. 2007-07-27. The Daily Telegraph. London. Michael. Howard. 10 August 2005.
  29. Web site: Time to liberate the country from Human Rights laws. 2007-07-27.
  30. News: Children test the law lords over right to an education. 2008-10-16. The Guardian. London. Clare. Dyer. 6 February 2006.
  31. News: Law lords back school over ban on Islamic gown. 2008-10-16. The Daily Telegraph. London. Joshua. Rozenberg. 23 March 2006.
  32. Craig, Administrative Law, 6th ed p560
  33. Ghaidan v Godin-Mendoza [2004] 2 AC 557 n.63 para.32
  34. Phillipson, Gavin, Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act,Modern Law Review, Volume 66, Number 5, September 2003, pp. 726–758(33)
  35. News: Mail editor accuses Mosley judge. BBC News. 10 November 2008.
  36. News: From human rights to the EU, the tide's turning against the liberal thought police. London. Daily Mail. Melanie. Phillips. 4 July 2011.
  37. Gallop, Nick in The Constitution and Constitutional Reform p.60 (Philip Allan, 2011) ISBN 978-0-340-98720-9
  38. News: Deadlock likely on commission pondering a British bill of rights. London. The Guardian. Alan. Travis. Patrick. Wintour. 18 March 2011.
  39. News: Cameron 'could scrap' rights act. 2007-04-02. BBC News. 25 June 2006.
  40. News: Coalition deal: Tories give more ground. James. Landale. 20 May 2010. BBC News Online.
  41. http://www.justice.org.uk/images/pdfs/A%20Bill%20of%20Rights%20for%20Britain.pdf
  42. Public Law: Adam Tomkins p192
  43. News: Reid warning to judges over control orders. The Guardian. London. Alan. Travis. 25 May 2007. 4 May 2010.