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The Human Rights Act The pre-Human Rights Act position HRA 1998 - Brining Rights Home?
The HRA and the role of the judiciary s2 duty to 'take into account' Strasbourg jurisprudence s3+4 Interpreting legislation s6-8 Proportionality The future of the ECHR The future of the HRA
1. The pre-Human Rights Act position
* Before the HRA, we didn't have rights in the sense of Bills of Rights - instead we had negative residual liberties (liberty is less forceful than a right is). The liberty to speak freely arose in so far as there were no rules to prevent you from doing so. It was a particularly weak idea - the 'rights/liberties' could be cut back by any common law rule or statute. Dicey thought that common law gave citizens enough liberty in that they were free to do as they like unless expressly prohibited by law, see Entick v Carrington.
* Where someone sought a declaration that the tapping of his phone was unlawful, the executive could just say that they weren't doing anything that was unlawful - negative residual liberties were not enough. Liberties are also particularly vulnerable to erosion, and the common law is powerless to prevent the legislature from enacting new restrictions.
* There were pre-HRA modifications which began to recognize rights as rights rather than negative residual liberties at common law.
* 1. R v MOD ex.p. Smith- when engaged in judicial review, the court could assess rationality. The intensity of review would be affected by the nature of the interest - if the interest was an important civil or political right, then the courts will engage in a more intensive review.
* 2. Derbyshire v Times - ECHR rights were mirrored by rights of an analogous nature embedded in the common law. This was a fairly fundamental statement.
* 3. Simms - If a statute involved a limitation on a common law fundamental right then it would be read in the narrowest manner possible - if Parliament wanted to limit rights, then it would have to do so expressly and unequivocally. Parliament has the ability to limit rights, but it must do so overtly and hence must pay the political costs.
* 4. There were also extra-judicial speeches by judges speaking in favour of rights e.g. Bingham, Laws.
* Bound by ECHR as an international treaty obligation had been signed but not fully incorporated into UK law - could rely on it as a persuasive argument, but not as a matter of law which created rights. The convention does not cover economic or social rights, and is confined to certain basic rights and liberties which the framers of the Convention considered would be generally accepted in the liberal democracies of Western Europe.
* There is frequent disagreement about what constitutes a breach of an individual's rights particularly when individual freedom comes into conflict with what the government of the day asserts is in the public interest e.g. is it a violation for the government to retain DNA samples from people who have never been convicted of a crime? There is no clear cut answer - the question is who should decide how the balance lies? The executive, legislature or judiciary? There are problems in relying wholly on political processes to ensure respect for human rights and the rule of law - in a majoritarian political system, minorities and other disadvantages groups are at a risk of being subject to discrimination and unjust treatment. The exertion of control by the executive over Parliament limits its ability to hold ministers, the police and other public bodies to
art 2 - the right to life qualified; deprivation of life shall not be regarded as inflicted in contravention of art 2 if it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, in action lawfully taken for the purpose of quelling riot or insurrection. art 3 - freedom from torture, inhuman or degrading treatment or punishment art 4 - freedom from slavery or forced labour art 5 - the right to liberty, security of the person, including the right of one who is arrested to be informed promptly of the reasons for his or her arrest, and of any charge against him or her, and to be brought promptly before a judge and to be entitled to trial within a reasonable time or release pending trial. Qualified by lawful arrest to prevent a person entering the country without authority and the lawful detention of people of unsound mind, alcoholics, drug addicts or vagrants. art 6 - the right to a fair trial by an impartial tribunal of a person's civil rights and obligations and of criminal charges against him or her, including the right to be presumed innocent of a criminal charge until proved guilty, and the right to be defended by a lawyer and to have free legal assistance when the interests of justice so require, to have adequate time and facilities for the preparation of his defence. art 7 - the prohibition of retroactive criminal laws art 8 - the right to respect for a person's private and family life, his or her home and correspondence Qualified by interference as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others. art 9 - freedom of thought, conscience and religion Qualified by limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, public order, health, morals, or the protection of the rights and freedoms of others. art 10 - freedom of expression art 11 - freedom of peaceful assembly and of association with others, including the right to form and join trade unions art 12 - the right to marry and found a family art 14 - without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth of other status, to enjoy the rights in the Convention. THE FIRST PROTOCOL art 1 - protection of property art 2 - right to education art 3 - right to free elections THIRTEENTH PROTOCOL - abolition of the death penalty
account. Hence, the courts decide on rights issues, though the UK has not given the courts the final say, as they have in systems with hard judicial review such as USA. It has developed its own system which gives judges the authority to overturn acts of public bodies which violate basic rights whilst ensuring that the ultimate law-making authority remains in the hands of Parliament.
2. HRA 1998 - bringing rights home?
* Rationale: Bringing rights home - we want to be able to sort out rights based problems in our own courts.
* There are three different layers of rights protection in the UK * 1. The common law requires that public authorities must have a clear legal basis for their actions, respect the requirement of fair procedure, and act in a 'rational' manner. The courts will also interpret legislation with reference to the presumption that Parliament did not intend to permit public authorities to violate common law rights unless the statute contains express or clearly implied provisions to the effect.
* 2. The ECHR protects core civil and political rights. The ECtHR interprets the text of the ECHR and determines whether nations are acting in conformity with its requirements. The UK has agreed to be bound by the jurisdiction of the ECtHR. However, The UK is under no legal obligation to respond to a ruling by the ECtHR, and they do not have direct effect like EU law does. They are required to give effect to judgements of the court, under an international law obligation.
* 3. The HRA introduced a way in which human rights could be addressed by domestic courts. The HRA gives individuals the ability to seek a remedy against the executive in domestic courts when there has been a rights violation, but still leaves the sovereign power of Parliament intact, through s3+4.
* Applications are still made to Strasbourg, sometimes because the HRA does not always provide a remedy for the applicant whose rights have been violated, or because the domestic courts have found that there was not a violation of the applicant's Convention rights.
* Strasbourg has concluded that state action which violates absolute rights, such as the right to freedom from torture, cannot be justified, but that state action which interferes with a qualified right, such as freedom of expression, must be shown to be objectively justified. The Court will grant states a margin of appreciation and impose a self restraint on its power of review in situations where authorities are best placed to form their own assessment of the rights issues at stake, as when complex issues of economic and social policy are at issue or there is no Europeanwide consensus about the level of protection that should be afforded to the right in question.
* The HRA was intended to be a compromise between a US-Style full Bill of Rights, and maintaing the unlimited authority of Parliament to legislate as it sees fit.
* It was intended 'not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only be recourse to Strasbourg'.
* Member states may derogate from most but not all of these obligations under the Convention in time of war or other public emergency - the UK has done so in respect of NI and anti-terrorist legislation.
* Art 13 was not covered by the HRA - it states that everyone whose Convention rights and freedoms are violated 'shall have an effective remedy before a national court'. The HRA does not satisfy this.
* The position of Human Rights within constitutional law * Orthodox view: the HRA and Parliamentary Sovereignty fit together nicely - the architecture of s3 and 4 is such that you can't invalidate a state. The general purpose of the Act is to allow domestic courts to give effect to Convention rights, but not to attack Parliamentary Sovereignty.
* Lord Irvine: "the Act is based on a number of important principles. Legislation should be construed compatibly with the Convention as far as possible. The sovereignty of Parliament should not be disturbed. Where the courts cannot reconcile legislation with convention rights, Parliament should be able to do so - and more quickly, if thought
s19 - A minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading (A) make a statement to the effect that in his view the provisions of the Bill are compatible with Convention Rights or (B) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill appropriate, than by enacting primary legislation. Public authorities should comply with Convention rights or face the prospect of legal challenge. Remedies should be available for a breach of Convention rights by a public authority." "The design of the Act is such as to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament."
* Challenges to the Orthodox view:
* There is implied repeal - the later statute prevails where there is an inconsistency with earlier statues. But, where the earlier statute is the HRA, it will not be impliedly repealed, see Thoburn, where it was held that there are now a number of exceptions to the doctrine of implied repeal.
* Argument: constitutional implications of the HRA are more far reaching than the orthodox view would allow, because implied repeal doesn't operate in this area.
* Response: Parliamentary Sovereignty remains because Parliament may expressly repeal constitutional law.
* The HRA is based on the assumption that Parliament would have the last word
* Parliament doesn't regard itself as having the last word - when courts kick statutes back to Parliament, under s4, Parliament always caves in. This proves that the boundary between soft constitutional review under the HRA and harder Americanstyle constitutional review is less clear cut than people think, because the courts in reality have the determination in their hands.
* This argument is based on the assumption that Parliament always does what the courts want it to do. Often parliament hasn't considered the HR issue that the courts raise the infirmity often resides in a particular legislative section, so the redress is very small. It will accept the courts argument when it hasn't considered the issue before.
* Even where Parliament has considered the issue, there may be cases were Parliament later decides that what the court suggests is better than its initial proposals.
* It still leaves cases where Parliament has considered the matter, the courts take a different view, and Parliament doesn't like the courts decision but nevertheless feels constrained to accept it.These are numerically limited circumstances, and so as a qualification on sovereignty this is less significant than might first be thought.
* When the courts make a determination that a statute is invalid with the HRA, then the court will only issue a declaration of incompatibility where there is a violation of human rights which it can't read interpretively. In making that decision, the courts already give some weight to Parliament's opinion. e.g. Consider the Animal Defenders case, where HoL found that there was no breach of freedom of speech.
* 'dialogue' between judiciary, executive and Parliament. Executive makes a statement that legislative provisions are in his view compatible with Convention rights. Parliament legislates. The courts either
* (a) interpret the provisions to be compatible under s3. Parliament can then either leave the interpretation alone, or legislate expressly against it.
* or (b) make a declaration of incompatibility. Minister then has a decision as to whether to cure the infirmity.
3. HRA and the role of the judiciary a. s2 Duty to have regard to Strasbourg Jurisprudence
* Under the HRA, the courts are not formally bound by the ECHR and the Strasbourg courts - they have an obligation to take it into account under s2. If there is a ruling and the UK goes against it,
s2 -(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgement, decision, declaration or advisory opinion of the ECtHR... then the Supreme Court will just make a ruling and the litigants will got to the ECtHR for a judgement saying the Supreme Court is wrong - the courts are de facto constrained by the jurisprudence of the ECHR unless they can distinguish from it.
* How far should the Courts go:
* 1. Orthodox view: This view was expressed by Bingham in the Ullah case: Mirror principle jurisprudence in Strasbourg is both a floor and a ceiling - you do not give less or more protection than Strasbourg, and you don't give protection where Strasbourg has not yet announced protection.
* 2. Academics view: The floor remains - you do not give less protection to rights than the Strasbourg courts do. But, the UK Courts should be able to develop laws over and beyond Strasbourg. This could just be in areas that Strasbourg is yet to pronounce on the issue. There is no ceiling - the courts should be able to give more protection, or protection in circumstances where Strasbourg doesn't.
* Ullah: Two asylum seekers claimed that even if they had not demonstrated a well-founded fear of persecution so as to entitle them to refugee status, on their return their rights to practice, preach and teach their religions would be so severely restricted that their removal would constitute unlawful infringement of the right to freedom under article 9. Held: The English court was obliged to take account of the case law of ECtHR, which suggested that removing a person to a country where he was foreseeably at risk of proscribed ill-treatment would be unlawful, even if it that treatment did not amount to torture under art 3. The court's case law required strong cases of actual or threatened treatment that would amount to a flagrant denial or gross violation of the relevant right. The claimants fell short of this, and so could not rely on article 9 to resist their expulsion.
* Lord Bingham: "The House is required to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg Court. From this it follows that a national court subject to a duty such as that imposed by s2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is of indeed unlawful under s6 for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. 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 case has been said to have created an 'Ullah-style reticence' where the courts do not depart from established Strasbourg jurisprudence - this is said to be inconsistent with s2 which only requires UK courts to take into account the Strasbourg jurisprudence.
* Animal Defenders International: C submitted adverts to the Broadcast Advertising Clearance Centre, which declined to clear the advert on the ground that it would breach the prohibition on political advertising in s31(2) of the Communications Act 2003. C claimed this was incompatible with art10 - freedom of political expression. Held: The Supreme Court is the court of final appeal whose interpretation of the incorporated articles will, subject only to legislative intervention, be binding in domestic law. The judgements of ECtHR are not binding on domestic courts - they constitute material that must be taken into account, but domestic courts are none the less not bound by the ECtHR's interpretation of an incorporated article. There is nothing to prevent Parliament from legislating to protect human rights to a greater extent than the Convention currently requires, but we are here concerned with whether an Act is compatible with Convention
rights. Parliament was not intending to give us the power to leap ahead of Strasbourg in our interpretation of the Convention rights, nor was it expecting us to lag behind.
* Horncastle: Ds submitted that because their convictions were based solely or to a decisive extent on the statements of absent witnesses whom they had had no chance to cross-examine, their rights had been violated. Held:. The requirement that the domestic courts take into account the Strasbourg jurisprudence will normally result in the domestic court applying principles that are clearly established by the Strasbourg court. There will be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciate particular aspects of our domestic process. It is open to the domestic court to decline to follow the Strasbourg decision. They do not need to follow a decision that is not taken by the Grand Chamber.
* Al-Khawaja and Tahery v UK: The applicants claimed that their trials were unfair because witnesses who weren't present either through death or fear could not be cross examined. The ECtHR declared that there was a violation of article 6. The UK requested that the case was referred to the Grand Chamber. Held: The Grand Chamber took on board the views of the UK Court, and modified its case law in response. Thanks to rules of evidence safeguarding the admission of hearsay evidence which cannot be cross examined, it did not violate article 6.
* Ambrose v Harris: Concerning whether the right to a fair trial required that a suspect who had been cautioned but not yet arrested or detained at a police station be granted access to legal advice before being subjected to questioning by the police. Held: It was not for the court to expand the scope of rights under the Convention further than the jurisprudence of the ECtHR justified. Since ECtHR had not said with a sufficient degree of clarity that a person who had become a suspect but was not yet in custody had to have access to a lawyer while he was being questioned, there was no violation of art 6. Lord Kerr [dissenting] said it is the duty of domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of Strasbourg does not make a pronouncement.
* Rabone v Penine Care NHS Foundation Trust: A voluntary psychiatric patient known to be suicidal, committed suicide on an authorized two-day home visit. M's parents claim that there was a breach of art 2. Held: No Strasbourg decision has yet equated voluntary patients with that of detained patients with regard to this art 2 duty. If a particular question which arises under the Convention has not been resolved by Strasbourg, domestic courts can still determine it. In certain cases the court may decide against a public authority by developing the common law to provide for rights more generous than those conferred by the Convention, but it should not grant such rights purporting to extend the reach of the Convention beyond that recognized by or reasonably envisaged within existing Strasbourg jurisprudence. In saying that the Courts should take into account Strasbourg jurisprudence, Parliament left it open for the courts to determine how far they should be influenced by a Strasbourg judgement. The domestic courts should make it clear that it is a development of common law and not a definition of Convention rights.
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