Constitution of the United Kingdom
The protection of rights and freedom of citizens and others within their jurisdiction is a basic duty of the state. In a majority of democratic states, fundamental rights are defined and protected through a written constitution. Under the United Kingdom’s, uncodified constitution, rights and freedoms have traditionally been protected either by Acts of Parliament often passed to meet particular needs or propagated by sudden needs of society or by the judges in developing the common law.
One response to the ravages of the Second World War was the formation of the Council of Europe.Europe was one of the principal theatres of the Second World War, following which there was felt to be a great need for European political, social and economic unity. These objectives were perceived to be promoted, in part, by the adoption of a uniform convention designed to protect human rights and fundamental freedom. In 1949, the Council of Europe was established and the convention on human rights ratified by signatory states in 1951, coming in to force in 1953. Despite having been instrumental in the drafting of the text of the convention, the British government had strong reservation about the Convention and its impact on British constitutional law. As a result of this reservation, the British government remained reluctant, until 1997, to make the Convention rights directly enforceable before the domestic courts. Accordingly, until the Human Rights Act 1998, the Convention rights could only be enforced before the court of Human Rights in Strasbourg. It came into effect in England and Wales in 2000 but Convention rights were enforceable in Scotland from 1998 under the Scotland Act 1998 and in Northern Ireland under the Northern Ireland Act 1998
The incorporation of Convention rights into domestic law under the 1998 Act put an end, finally to the debate of transposition of these rights which had endured for decades. That long running debate focused on 3 principal concerns, namely the criticism that the convention is outdated and not tailored specifically to British conditions, that the Judiciary was ill equipped to assume the mantle of guardian of the Individual rights in the face of Executive power and the concept of Parliamentary Sovereignty and concerns over manner in which incorporation would effect the conventional balance of power between judges and Parliament. There was also the argument that the House of Commons, the democratically elected representative body of the people, was best equipped to respond to the better protection of rights.
The effect of the Act is such that three avenues for challenging public bodies arise; first, a failure to comply with Convention rights now forms the basis for legal action. Secondly, a new ground for judicial review has been introduced namely the alleged breach of human rights. Third, convention rights may in some circumstances be used as a defence to actions brought by public bodies.
The Act provides a charter of rights now enforceable before the domestic courts. theist effectiveness however rests on the course of action on which the judiciary embarks upon. The judges have to have a willingness to defend Convention rights to protect individuals preventing the government’s encroachment to the greatest extent possible. Moreover the judges need to ensure compliance with declarations of compatibility with Convention rights to ensure compliance with declarations of compatibility with Convention rights and the energy with which individual citizens are prepared to assert their rights in courts of Law.
The Act, in the government’s view, was intended to provide a new basis for judicial interpretation of all legislation; not a basis for striking down any part of it. However, notwithstanding the careful drafting of the HRA in order to preserve sovereignty the judges appear to be developing the concept of the constitutional statute; one constitutional statute, one consequence of which is that the doctrine of implied repeal does not operate and only express intention to amend or repeal the Act will have effect.
Section 2 of the HRA requires that the domestic courts to take into the account, interalia judgments of the court of Human Rights. This does not however mean that the courts are bound to follow slavishly such judgments. The issue was central to the case of Kay v Lambeth.
The primary focus of the convention rights is on public authorities. HRA 1998, S.6 (1) states: “It is unlawful for a public authority to act in a way which is incompatible with a convention right.”
S.6 (3) states: “Any person certain of whose functions are functions of a public nature.”
The definition of the public body was considered by the Court of Appeal in R v Leonard Cheshire Foundation (2002). Although some bodies are clearly public authorities such as government departments, local authorities, the police, the Inland Revenue and others who have no private function, the Act does not define ‘public authority’
The restrictive approach of the Courts, illustrated most starkly by the Leonard Cheshire case and the YL case has been subjected to strong criticism by the Joint Committee on HR in the meaning of Public Authority under the HRA. The Committee highlights the implications of the narrow interpretation of public bodies for a range of particularly vulnerable people in society.
The Committee endorsed the view that the key test for whether a body exercised a public function should be whether the relevant function is one for which the government has assumed responsibility in the public interest. It should not depend on whether the body is acting under statutory authority or under contract. The Committee considered that the current position is unsatisfactory and unfair and continues to frustrate the intention of Parliament.
S.3 HRA requires the courts to interpret primary and subordinate legislation in a way which is compatible with the Convention, so far as it is possible to do so. The House of Lords in R v A 2002 laid down the basis for the reinterpretation of a statutory provision to make it compatible with convention rights which was followed in Ghaidan v Godin Mendoza 2004.
Declarations of incompatibility are regulated by s.4, which provides that if a court is satisfied that a provision of primary or subordinate legislation is incompatible with one or more convention rights, it may make a declaration of incompatibility and s.5 of HRA 1998 confers on a minister the right to be heard. The purpose of s.5(2) is to ensure that the appropriate minister has an opportunity to address the court on the objects and purposes of the legislature in question and any other matters which might be relevant.
Article 13 of the Convention which provides that everyone shall have an effective remedy before a national authority has deliberately not been incorporated. Instead, s.8 provides that, where a court finds that a public authority has acted unlawfully, it may grant “such relief or remedy, or make such order within its jurisdiction as it considers just and appropriate. Accordingly, courts and tribunals may only award as remedy which is within their statutory powers. Damages may only be awarded by a court which has power to award damages or to order the payment of compensation in civil proceedings and no award of damages is to be made unless, taking in to account all the circumstances of the case and any other relief or remedy available, the court is satisfied that the award is necessary to afford just satisfaction to the complainant.
The HRA introduced a disturbance or a perturbation in the judicial practice of precedent is testified by the case of R v Lambert and R v Kansal . However this dilemma was put to rest in these cases when it was suggested that the interpretative powers given to the judiciary should not be exercised retrospectively.
Lately an escalating debate has been witnessed against the HRA. These controversies provide an important backdrop to the legal developments in this field. The Prime Minister has frequently challenged the value of the European Court of Human Rights and the HRA criticizing the Act. Deportation of terrorists and the threat they pose to national security has been a prevalent practice which has been a flagrant breach of the rights granted under the Convention. The Conservative Party in the UK has even proposed to scrape off the Act and replace it with a complete UK Act which shall preserve public interest and national security policies more than any regional or international pacts.
In July 2006 the Department of Constitutional Affairs (DCA) published its review of the Implementation of the HRA. It considered the development of substantive law and decided that HRA had no significant impact on criminal law and that the HRA’s impact on counter terrorism legislation arose from the decision of the ECtHR rather than the HRA itself. The review opined that in other areas the HRA had had a beneficial impact and had not significantly altered the conational balance between Parliament, the Executive and the Judiciary.
The Review also concluded that the HRA had not affected the outcome of the cases largely as the Convention rights might not be directly related to the facts of the case or interference with the Convention rights might be justified or a similar right might already be recognized by common law.
The Review canvassed various options for the future. The Government had ruled out with drawing from the European Convention on Human Rights or repealing the HRA. It would be possible, however, to amend the HRA using the margin of appreciation to require the courts to give particular respect to public safety in a similar way to ss.12 and 13 in relation to freedom of expression and freedom of thought. The Government also proposed to take a more proactive, strategic and coordinated approach to HRA litigation.
By studying HRA, all law subjects are now open to a human rights analysis and the next few years will see the application of those principles tested to the fullest.
Many cases to date have received widely spread publicity, not surprisingly given that many of the big human rights case raise issues that are politically or morally contentious and often emotionally charged: for example the Art 8 rights to privacy of Venables and Thompson, the convicted murders of toddler Jamie Bulger. The Art 5 rights of those alleged to be supporters of terrorism. A and others v Secretary of State for Home Department and the rights and wrongs of assisted suicide in cases of terminal illness or life threatening disability, R v DPP, exparte pretty 2001. the rages of cases is ever increasing as these new principles are tested.
After the non binding Universal Declaration of the HRA, many global and regional human rights treaties have been concluded. Critics argue that these are unlikely to have made any actual difference in reality. Others contend that international regimes can improve respect for HR in state parties, particularly in more democratic countries or countries with a strong civil society devoted to Human Rights and with transnational links. The finding suggest that rarely does treaty ratification have unconditional efforts on HR. instead, improvement in human rights is typically more likely the more democratic the country or the more international nongovernmental organizations its citizens particular in. Conversely, in very autocratic regimes with weak civil society, ratification can be expected to have no effect and is sometimes even associated with more rights violation.
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