Selecting and discussing up to five cases decided in the UK since 2 October 2000, explain the impact Human Rights Act 1998 has had on the law in England and Wales.

         Where the UK has breached a convention right, the government normally changed the law in the UK to remove the inconsistency. This can be seen in Malone, the claimant took his case to Strasburg and argued breach of Article 8. The ECHR held that the telephone tapping powers in the UK did contravene Article 8, as they were not subject to clear and accountable procedures. As a result the UK passed the Interception of Communication Act 1985 to provide statutory authority for telephone tapping.

Certain convention rights are absolute Freedom from Torture which cannot be interfered with. Whilst others Freedom of Expression are conditional and can be interfered with provided the restriction is in accordance with prescribed by law and necessary in a democratic society for the pursuance of a legitimate aim.

        The Malone case resulted in the courts and parliament paying attention to the convention and its rights. The courts were influenced by the provisions of the convention before the Human Rights Act had come into force and In R V Secretary of State for the Home Department ex parte Brind, it was presumed that parliament would enact laws that were in line with the Convention. As a result where a statute could be interpret in line with the convention then that interpretation should be applied rather then the one contrary. Lord Bridge stated that doing this would enforce conformity with the convention.  Therefore where a statute was ambiguous the courts could use the convention as a guide to its correct interpretation.

The Human Rights Act 1998 came in to force in 1998. The Act gave further effect to the European Convention on Human rights by making some of its provisions directly enforceable in the UK. It gives effect to Rights contained in Art 2-12 and 14of the main convention, Art 1-3 of the First Protocol and Art 1 and 2 of the Sixth Protocol.  The Human Rights Act 1998 brought about a number of changes after its implementation. Most importantly the Act gave us rights which could be claimed as apposed to the previous position of freedoms only.

  In 1974, the labour government first promised to enact the HRA however it did not come in force till 1998. Despite the passing of the Bill the Act did not actually come into practice straightaway. The reason for the delay was justified by the fact that the judges needed training on how to approach the Act. Many people believed that the Act might follow the Easter Act and never come in to force. However, eventually the judges pulled it into force in 2000 by applying its principles.

There were a number of reasons why the act was brought in force including the fact that it was time consuming and expensive to go to Strasburg for a decision as it took over 5 years. The Parliament believed that enforcing the convention in domestic law would limit these problems and also the number of claims going to Strasburg.

 The Human Rights Act 1998 made the convention rights directly enforceable in the domestic courts. This meant that instead of having to go to Strasburg, the claimant can argue breach of convention rights in any court in the UK. The passing of the Act means that the Courts can take the case law of the European Convention into account when adjudicating on human rights disputes. The Courts are not bound to follow the European cases.

One important limitation to the Act is that the convention rights are only ‘Vertically directly effective’ meaning that they can only be enforced against the state in other words a Public Body and not ‘Horizontally directly effective’ enforceable against other individuals.     S 6(1) It is unlawful for a public authority to act in a way which is incompatible with a convention right.  A public authority can include central and local government, the police, NHS etc. The meaning of a public authority was considered in Donoghue v Poplar Housing and Regeneration Community Association where the HOWL decided that a public authority could include a housing association, as by providing accommodation it was fulfilling the local authorities’ statutory obligation. The courts have accepted that the convention does have a limited Horizontal effect. As in Douglas v Hello the legal proceedings were between private parties involving the breach of Article 8, their Right to Privacy. Douglas and Zeta-Jones claimed breach of the Article because photographs of their marriage were published in the Hello magazine without their prior authorisation. The court held that the convention was relevant to the case because of the HRA and they were entitled to damages. The Douglas case is very important as it shows the impact of the HRA as it shows how the Human Rights Acts Article 8 could protect the Right to Privacy and that the Act in certain circumstances can be used between private bodies increasing the Acts impact.

        The HRA has had considerable impact in relation to all its Articles, I will outline a few cases to demonstrate. The Act has considerable impact on both Civil and Criminal cases. The HRA has had some impact in relation to its Article 7. This Article prohibits retrospective criminal law and penalties. The article only applies where an applicant is found guilty of an offence. The provision also generally only applies to decisions or acts of public authorities taking place after the act has come into force. Breaches before this time are subject to the general principles of judicial review and legality. In R v Lambert it was held that the act did not have a retrospective effect however in Wilson v Sec of State for Trade and Industry the HOL took a more flexible view. Some of the provisions of the Act could have retrospective effect if that would not be unfair to the parties in the case.         

        Further impact of the Act can be seen in the following cases. A and others v Secretary of State for the Home Department The Special Immigration Appeals Commission who processed appeals made by individuals against certification (and detention) by the Home Secretary, who reasonably believed these individuals to be a threat to national security and suspected them of being terrorists. It was held that in hearing such case the SIAC could not receive evidence against these individuals where it had been obtained by torture. This clearly breached Article 3 no one will be subject to torture or inhuman degrading treatment or punishment. There is no exception in Act for the use of torture and Art 3 provides that the State ensures that the individual does not suffer ill treatment either by public or private individuals.

Article 5 provides that everyone has the right to liberty and security. No one shall be deprived of his liberty save in ...accordance with the procedure described by law. A curfew or house arrest may amount to deprivation of liberty. This was the case in the following case. Sec of State for the Home Dept v JJ and others the Home Secretary made control orders for 6 individuals suspected of being involved in terrorist activity. This was done under The Prevention of Terrorism Act 2005. The orders allowed them to leave their flat for 6 hours a day and restricted movement to certain areas. It was held that the orders were in breach of article 5 of the European convention as being a deprivation of Liberty which resulted in the orders being quashed. The exceptions for his Art include that any interference would only be permissible if it was made in a procedure prescribed by law. 

Article 2’s guarantees the Right to Life under the law. This places a positive duty on the state to make sure that an individual’s life is not taken unnecessary. The state would also be responsible for breach if the life was taken by a private individual but the state had failed to safeguard the victim’s life. Thereby the state is responsible for putting in place criminal law provisions which are back by law enforcement to prevent such deaths. In Van Colle v Chief Constable of Hertfordshire the Court held that there had been a breach of Article 2 when the state failed to adequate steps to protect the life of a prosecution witness despite a there being a real risk of attacks by suspects in a forthcoming trial.

In many cases more then one Article of the Convention will be argued to be breached in the same case, both attempt to try to achieve justice for the same party. However Article 8 and Article 10 are mostly argued to be breached in a single case but not for the same party but both parties arguing one breach each. These two Articles have had a major impact on the law. The law of confidentiality could be justified under Art 10(2) of the Convention as a legal interference with free speech as serving to protect the rights of others. The following case illustrates this, it involves a balance between privacy and the exercise of freedom of expression by the Press. In Campbell v MGN, Naomi Campbell argued breach of confidentiality by MGN as they had published information about her attending a self help group meeting in order to help treat her drug addiction. They also published photographs of her leaving the meeting. It was held that the Art 8 outweighed the competing right under Art 10 by MGN of Freedom of Expression by the Press.

The Human Rights Act has been described as one of great constitutional significance as it provided judges with enhanced powers with respect to the protection of Human Rights.

Before the Human Rights Act 1998 came in to force the courts could use the European convention indirectly and only in cases where there was an uncertainty in a statute or common law (authority). However, ever since the Act has come into force, judges can take into account the case law of the convention (s.20) and so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights. and must interpret statues in line with the convention wherever possible (s.3).  This is an improvement to the previous position where ambiguity was interpretated in favour of the convention. The requirements imposed on the courts by s3 is a marked departure from the traditional rules of statutory interpretation as the HRA is being used as an interpretation too. The Courts can be seen as ignoring what Parliament intended in order to reconcile the domestic statute with the Convention right.

When faced with a claim for the breach of a right the court must decide weather the UK law is consist with or breaches the convention right. Although s3 requires the court to interpret the statues in a way which is compatible with the convention, there may be situations where the wording of the statute is so clear and unambiguous that it cannot be interpreted in any way other then in conflict with a Convention right. In such cases the higher courts can make a ‘declaration of incompatibility’. R v London North and East Region Mental Health Review Tribunal concerned the compatibility of the domestic law with the European Convention on Human Rights. The Claimant was kept in a mental institution under the Mental Health Act 1983. In order to be realised he had to prove that the conditions for detention no longer applied. His application was refused and he sought Judicial Review of the decision.  It was held that the requirement for him to prove that the detention no longer applied resulted in a reverse burden of proof which was incompatible with Article 5. As a result a declaration of incompatibility would be initiated.

Under Section 19 the relevant government minister has to publish a written statement as to whether or not a bill is compatible with the convention when it is introduced. If it is not then the minister needs to state that they would still like to go ahead with the Bill.

Although the HRA represents an important advance for civil liberties, there are limitations on its impact. If a Court makes a declaration of incompatibility, it is up to Parliament to change the statute in order to remove the conflict with the Convention rights. If it is removed it is done via a fast track procedure which avoids the full parliamentary procedure. Section 3 (1) states that a declaration of incompatibility does not effect the validity of incompatible primary or secondary legislation where the primary legislation would prevent the removal of the incompatibility. Thus the sovereignty of Acts of Parliament is preserved and the courts in the UK unlike the US do not have the power to strike down legislative provisions that have been clearly sanctioned by Parliament. This provision had to be included in the Human Rights Bill by the Government in order for Parliament to approve it.

The courts have the power to grant appropriate remedies to those whose convention rights have been violated. The Courts could award just satisfaction to the victim. Just satisfaction includes the power to award damages to compensate for pecuniary and non pecuniary loss suffered by the victim. The courts will not automatically grant damages for breach of convention rights.

Although the fact that the Human Rights Act has had a major impact on the issue of Human Rights in the UK it has nevertheless failed to give the UK a bill of Rights because the Act is not by law entrenched and can be repealed by a future Act of Parliament. However the act does appear to be politically entrenched as it would be difficult to revoke as doing so would provoke public discontent. The intention behind the act was to strengthen the protection of individual rights in the UK and to provide better remedies where these rights were violated this I believe has been achieved. Governments in the past had refused to incorporate the convention into UK law before 1998, fearing a ‘flood’ of cases, which in fact has not materialised. It has affected different areas which were originally not foreseen.

Bibliography

Ryan, M. 2007. Unlocking Constitutional and Administrative Law. London: Hodder Arnold

Carrol, A. 2007. Constitutional and Administrative Law. Fourth Edition. London: Pearson Longman

Parpworth, N. 2006. Constitutional and Administrative Law. Fourth Edition. New York: Oxford University Press

Taylor, C.2008. Constitutional and Administrative Law. Dorset: Pearson Education

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