Section 3 covers primary and secondary legislation, both pre and post 1998 to make sure that “so far as it is possible to do so” legislation should be interpreted in a way in which is consistent with convention rights.
It also urges judges to cast aside their methods of literal interpretation and adopt a more purposive approach. This section is important when discussing judicial review later on.
Section 3 (2) (b) states that even if a judge finds primary legislation incompatible with the convention rights this still does not render it invalid or affect its enforcement.
Subsequently section 4 deals with incompatible legislation by empowering the House of Lords or Judicial Committee of the Privy Council to make a declaration of incompatibility if the courts have found legislation conflicts with one or more of the convention rights. However subsections 6 (a) & (b) state that “the declaration will have no effect on the validity of the primary legislation in question, nor will the declaration affect the legal position of the parties to the litigation”. The purpose of this section is to enable the courts to draw the government’s attention to the offending legislation, so that they can decide whether to take remedial action. The government says that the Act is “intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it”.
Section 5 allows the crown to intervene when a court is considering whether to make a declaration of incompatibility. This once again keeps parliamentary supremacy in tact.
Sections 6, 7 & 8 join together to form an important part of the Act because they allow the “victim” of a human rights abuse to sue.
Section 6 makes it “unlawful for a public body to act in a way which is incompatible with a convention right”. Subsection 6 (3) (b) defines public bodies as “any person certain of whose functions are functions of a public nature”, for example government departments, courts and local government.
Section 7 allows a person to make a claim to the courts if they are a “victim” of an unlawful act by a public body, (with the exception of courts).
Section 8 says that if a public body is found to be acting unlawfully in accordance with section 6 then the court will grant what remedy it sees appropriate, possibly compensation.
Finally section 9 states that proceedings are bought about by appeal or judicial review.
Judicial Review and The Human Rights Act.
When laying down the convention rights that are included in the Human Rights Act, section 1 left out Article 13 of the convention; “the right to an effective remedy”. This was omitted because judicial review already makes this provision.
Under traditional review procedure the legality of actions taken by public authorities was usually tested by “reasonableness”; did the public body act reasonably within the boundaries of the legislation. There are also tests for illegality, irrationality, also known as “wednesbury unreasonableness and procedural impropriety. The Human Rights Act gives new grounds in which public powers can be challenged through judicial review by using the concepts of “proportionality and necessity”. When considering this judges will take into account 3 issues:-
- Was the legislative objective sufficiently important to justify limiting the fundamental right?
- Were the measures adopted to meet the objective rationally connected to it?
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Court must be satisfied that the means used to impair the right to freedom were no more than necessary to accomplish the objective? (proportionality test).
Not only does the proportionality test give greater protection of peoples rights than the Wednesbury test, it also allows judges in Britain to interpret legislation in consistence with The European Court of Justice and the European Court of Human Rights.
Proportionality has been used more frequently in recent years, since section 2 of The Human Rights Act requires judges to take into consideration judgements made by the Court of Human Rights. In creating this concept judges will be going further than they have been able to in the past because not only can they review cases because of illegality, irrationality and procedural impropriety, but they can now scrutinize the merits of legislation when it comes into conflict with the Human Rights Act.
This has lead commentators and judges to question whether proportionality will stay solely with human rights issues or will it eventually cross over into traditional judicial review procedure. It would seem that an overlap of the two concepts could lead to unnecessary confusion and some consider that proportionality should override irrationality.
This is not the only difference between traditional judicial review and judicial review under The Human Rights Act. Under normal domestic judicial review if a person wants to bring a claim they have to show a “sufficient interest” in the offending legislation. Unless this test is met courts will not grant permission for review. Sufficient interest must be proved both provisionally at the permission stage and also at the substantive hearing. This is seen as a board approach and has been criticised as “somewhat of a legal minefield”.
The rules on standing under The Human Rights Act are seen as a somewhat narrower approach. Section 7 (1) states that only a person who is, or would be, a “victim” of an action, or proposed action, by a public authority which is incompatible with the convention can bring proceedings or rely on the convention rights or rights concerned.
To assess the meaning of the term “victim”, the court is bound to follow Strasbourg. This is because a “victim” under the Human Rights Act is only a victim for the purposes of Article 34 of the convention. This states that any person, non-governmental organisation or group of individuals claiming to be a victim of a violation of a convention right by a contracting state.
Occasionally a person who is indirectly affected may also be permitted to bring a claim; for example Paton v. United Kingdom claimed that he was an indirect victim of the UK legislation covering abortion.
This narrower approach cuts down time wasted with “do-gooders and busy bodies” because it means that only people directly affected by the conflicting legislation would be shown to have “sufficient interest”. There are problems with this in the fact that people bringing a claim may face both the “sufficient interest” and the “victim” tests. The court will therefore be unable to hear every case, no matter what the merits because the people bringing the claim may fail one of the tests.
A Critique of the Act.
Section 3 of The Human Rights Act requires courts to interpret legislation in a way which is compatible with the convention rights “so far that it is possible to do so.” This requires judges to leave traditional judicial interpretation techniques behind in favour of a more “purposive” approach. The problem with this is that it could lead to judges reading words into legislation that are not part of it in the first place, or as Lord Steyn states:
“It may require courts to adopt an interpretation which may appear linguistically strained.”
There is much ambiguity when interpreting section 3 of the Act itself and it should be made clearer when saying how far “possible” should be taken. If this does not happen it could lead the courts to make absurd judgements in an attempt to interpret legislation so as to conform to convention rights.
The second problem that the courts have encountered comes in section 6 when there is confusion over the meaning of the term “public authorities”. Although the white paper included a long list of organisations that could be construed as public authorities, there is no such list within the Act. Instead subsection 6 (3) (b) states that a public authority includes “any person certain of whose functions are functions of a public nature.” Some public bodies such as Rail Track can also act privately; this can lead to further confusion.
An example of this problem is the case of R (Heather & Another) v. Leonard Cheshire Foundation (2002). The foundation is a private charity that receives funding from local authorities. It was found in this instance that the claimants could rely on the convention rights against the local authority but not against the charity, who weren’t exercising a public function. Because of the vagueness surrounding this section it would seem appropriate for a new subsection to be written providing examples of what constitutes a public body, therefore making the courts interpretive duties much simpler.
Question also arise as to whether the Act is both horizontally (enforceable on private organisations or individuals) and vertically (enforceable on state bodies) effective? It seems obvious that the Act has vertical effect but there seems to be no obvious procedures in place for individuals wanting to bring a case against another individual or private company.
In order to allow direct horizontal effect, it appears that it will have to develop through common law principles. Doing this will eventually eradicate the queries surrounding section 6 as there would be no need to differentiate between public and private functions.
Human Rights Culture.
In an ideal world, no legislation would come into conflict with convention rights but, because The Human Rights Act is relatively new and there is so much legislation, there are bound to be cases where certain parts of a statute will be incompatible with the convention rights. Since the Act came into force there has been many cases involving breaches of convention rights, although little attempt has been made to study the overall impact that the Act has had on domestic law. One would assume though, that when the Act first came into force that there would have been a flood of insignificant and somewhat unmeritous cases. Hopefully as judges and lawyers become more acquainted with the Act, these cases will gradually reduce to make way for more significant cases.
Conclusion.
It would seem that The Human Rights Act 1998 has had huge impact on domestic law: Firstly by affecting past legislation which needs to be amended in accordance with the convention rights, also present and future legislation must be drafted with great consideration, so as not to contravene convention rights. Secondly, the Act has had a major affect on the interpretive powers of the judiciary and changed the ground for judicial review when a section of the Act comes into question.
It has been mentioned in this essay that The Human Rights Act has not been allowed to become “legally entrenched”; this is a good thing because over the years, future governments will be able to amend the problematic sections of the Act. This will hopefully lead to a clearer understanding, not only to state bodies and the legal profession, but to individuals who wish to bring a claim.
BIBLIOGRAPHY.
Barnett, H. (2002), Constitutional and Administrative Law (4th Edition), London: Cavendish.
Clements, R. & Kay, J. (2001), Constitutional and Administrative Law. London: Blackstone Press Ltd.
Gordan, R. & Ward, T. (2000), Judicial Review and The human Rights Act. London: Cavendish.
Hood Philips, O. & Jackson, (2001), Constitutional and Administrative Law (8th Edition), London: Sweet & Maxwell.
Leigh, I. (2002) Taking Rights Proportionately: Judicial Review, The Human Rights Act and Strasbourg, in Public Law, Summer.
Leyland, P. & Woods, T. (2001) Administrative Law. London: Blackstone Press Ltd.
Loveland, I. (2003), Constitutional Law, Administrative Law & Human Rights, a Critical Introduction (3rd Edition), London: Butterworth’s.
Wilson, R. A. (1997), Human Rights, Culture and Context. London: Pluto Press.
Loveland, “Constitutional & Administrative Law & Human Rights”. (2003) p. 622.
Barnet, H. (2003) “Constitutional and Administrative law”. p. 631
The Human Rights Bill, cm3782, 1997, London: HMSO, Para 2.14.
See Associated Provincial Picture Houses L.T.D v Wednesbury Corporation.
Barnet, H. (2003) “Constitutional and Administrative law.” p. 635.
Lord Slynn in R (Alconbury developments L.T.D. & others) v. Secretary of state for the environment, transport and regions (2001).
See Lord Cooke’s judgement, in Loveland, (2003) “Constitutional law Administrative law and Human Rights”. p. 655-656.
R.v Poole BC exp Beebee (1991) JPL 643, per Schiemann J, p. 644.
Barnet, H. (2003) “Constitutional and Administrative law” chapter 19 Protection of Human Rights.
Rights Bought Home: The Human Rights Bill, (1997).
See HC Deb Vol 314 Cols 406-414, 17 June 1998, & Col 1231, 16 November 1997.
Cases involving convention rights are listed in Arkinstall, J. & O’Brian, C. (2002). “Table of Cases under The Human Rights Act.” European Human Rights. LR 364-388