Although it has faced many trials and tribulations, the HRA has slowly and steadily been absorbed into the UK legal system and today can make a strong case for its retention and the security of its place in the constitutional order even through the strongest and most recent calls for its repeal.
When looking back into the era prior to the HRA, it was the Common law that is much-respected judiciary that protected the liberties of the people of Britain. According to A.V Dicey’s three principle aspects of Rule of Law, the rights and freedoms of people are best protected under the common law (rather than the formal Bill of Rights). However, as to what extent the Judiciary was able to protect the rights and liberties of British subjects can be seen in the case of Malone v. Metropolitan Police Commissioner[5]. In this case, the court held that telephone tapping by the police could not be unlawful in the UK as there was no right to privacy at common law that could be breached. Sir Robert Megarry VC said that in England a person has a right to do anything that was not prohibited by Law.
Also, the courts and parliament prior to the enforcement of the HRA prohibited or ignored legal actions brought against the public interest as it assumed that these actions would cause public unrest in other related cases. Thus it also attempted to save the public bodies. In the case of Osman v United Kingdom[6], a leading case before the ECtHr on human rights law in the United Kingdom, the domestic courts held that the police owed no duty of care to the applicants. However, the ruling of the ECtHr was that such blanket immunity would be a breach of article 6 (right to fair trial), of the ECHR, but that there was no breach of articles 2 (right to life), and 8 (right to privacy). So it was not until the ECtHr intervened that the appellants got justice.
In order to determine if the HRA has had little impact upon protecting the basic liberties of British subjects, an analysis needs to be done on the impact the HRA has had on society at large.
Firstly, when considering the judicial aspects, as per section 3 of the HRA, it instructs the courts to interpret the domestic primary and subordinate legislation with compliance to Convention rights set out by ECHR.
In an instance when the legislation is not in compliance with the Convention rights, section 4 of the HRA states that they should pass a declaration of incompatibility against the legislation. However Section 4(6) of HRA 1998 provides for the supremacy of the Parliament by stating that the validity of their legislation will not be affected by such declarations thus this dismisses the notion among the public that Parliamentary Sovereignty is somehow undermined by the introduction of this Act.
The effects of the above section of the HRA have resulted in the support of it by judges all over the country. As stated by Lord Phillips in the new law journal, The Act is “an outstanding contribution to the upholding of the rule of law in this country”[7].
Secondly, as per the context of the question discussed, the impact of the HRA on the subjects of Britain is of the most importance. Thus when considering the, articles 2 (right to life), 5 (right to liberty), 6 (right to fair trial), 8 (right to privacy) and 10 (right to freedom of expression), they provide a strong solid base on which any subject can seek justice.
The case of A v. Secretary of State for The Home Department [8] was a case heard before the House of Lords held that the indefinite detention of foreign prisoners (suspected terrorists) is against the Article 5 (right to liberty) of ECHR [9](Schedule 1, Part 1 of the Human Rights Act 1998). Moreover in Michel v. The Queen[10] the Judicial Committee of Privy Council held that the constant intervention of the judge was against the Article 6 (right to fair trial) of ECHR [11]as it would undermine Judicial Independence and thereby interfering with Basic Liberties.
However, when dealing with Article 8 and Article 10, the domestic courts have face difficulty in interpretation. Such conflicts can be shown by leading cases, for example Douglas and Others v. Hello![12] Ltd. and A v. B plc[13]. In Douglas v. Hello! Ltd the Court of Appeal held that individuals had a right of personal privacy which was grounded in the equitable doctrine of breach of confidence. However in A v. B Plc the Court of Appeal said Freedom of press can only be interfered when there is evidence to justify such interference and could not be limited until there was no identifiable public interest in the material being published.
The Act being a constitutional statue cannot be repealed without another Act overruling it expressly and eventually replacing it. This is due to the Doctrine of Implied Repeal. In the case of Thoborn v. Sunderland City Council[14], Laws LJ stated “Ordinary statutes may be impliedly repealed. Constitutional statutes may not….”
Most recently the conservative party have been canvassing against the HRA in order or repeal the HRA as they have taken steps towards it by creating a 'Bill of Rights' for Britain. “Cameron pledges bill to restore British freedoms" says the Guardian[15]. However they’re aware that the repeal of this criticized piece of legislation will not be a politically simple work to do as it would abolish the protection of human rights under United Kingdom and it would lead to a drift between the parliament and judiciary.[16]
Repealing the HRA would also have an effect on the Scotland Act of 1998 as the Scottish Parliament cannot pass legislation which is incompatible with the HRA.[17]
Further, if the HRA were repealed and Convention rights were no longer included in domestic law, aggrieved parties have to take their cases to the Strasbourg court to get their rights upheld. Thus, due to the financial burden this causes or depending on the funding available, parties might find it difficult to bring rights-related proceedings.
The issue of practicability also comes in when one attempts to repeal the HRA. Jeremy Bentham famously argued that the common law is similar to “dog-law,” like waiting for your dog to do something wrong and then hitting it, and that it should be replaced with a codified, civil law system. They did not have any document to refer to their rights and freedoms; instead they had thousands of cases to refer to. Therefore, it can be seen that this is theoretically possible but not practically as people love this piece of legislation.
If it is decided to repeal the Act as voiced by its opponents, it will create a time period in which the common law can expand.[18] This time period or void that will be created will initially trigger some strife both nationally and internationally but eventually with time it will have the ability to overcome all difficulties faced.
This is due to the following facts[19]:
Domestic Application of Human Rights.
When treaties are signed internationally this has a direct effect on the domestic law of Britain. If a conflict occurs they have to comply with the requirements of the international law as said in Section 2(1) and (2) of European Communities Act 1972 and Section 3(2) of HRA 1998.
Considerations with regard to the European Charter of Human Rights
The Lisbon Treaty mandates that all EU members need to consider the European Charter of Human Rights in advance before judging any case related to human rights.
The development of Human Rights
Since the growth of the Doctrine of Purposive Interpretations, the courts are now well adapted to interpret what is needed from them. They now know their functions and responsibilities as expected from them domestically and internationally.
It’s baseless to declare that the repeal of The Act has no effect. Even through the negative publicity, British citizens who challenge in court under the articles mentioned in the HRA looks upon it with great confidence as they have in their mind that now they have a hugely important piece of legislation on whose backing they can take necessary actions against the other individuals or the public bodies who violate their rights. The courts have also considered HRA 1998 as a much supportive tool in reaching decisions in many complex cases. The Act has made it easy for the courts to fulfill the intension of the parliament and be conventional with the requirements of the international law along with the judge’s skills of interpretation.
For the Human Rights Act of 1998 to be more successful, it needs to be provided with time to settle down in its environment. The idea of abolition will not be favourable at present as it will cause political unrest and unnecessary difficulties for governing bodies.
Bibliography
[1] Rawls 1971, 61
[2] Pettit 1997, 75-76
[3] Jack Beatson, Stephen Grosz, Tom Hickman, Rabinder Singh and Stephanie Palmer - Reviewed by Michael Beloff, 2011, Law Quarterly Review - Human Rights: Judicial Protection in the United Kingdom, Publication Review.
[4] Daily Telegraph Poll Link : <http://www.telegraph.co.uk/news/uknews/1486471/Human-Rights-Act-does-more-harm-than-good-says-poll.html>
[5] [1979] 1 Ch 344
[6] [2000] 29 EHRR 245
[7] John Cooper and Chris Warburton. HRA 1998: irreversible on 19th Nov 2010 issue of New Law Journal
[8] [2005] 2 AC 68
[9] Schedule 1, Part 1 of Human Rights Act 1998
[10] [2010] 1 WLR 879
[11] Schedule 1, Part 1 of Human Rights Act 1998
[12] [2001] 2 All ER 289
[13] [2002] EWCA Civ 337
[14] [2002] 1 CMLR 50
[15] <http://www.guardian.co.uk/politics/2009/feb/28/conservatives-human-rights>
[16] John Cooper and Chris Warburton. HRA 1998: irreversible on 19th Nov 2010 issue of New Law Journal
[17] <ww.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-and-liberty/from-the-human-rights-act-to-a-bill-of-rights/>
[18] John Cooper and Chris Warburton. HRA 1998: irreversible on 19th Nov 2010 issue of New Law Journal
[19] John Cooper and Chris Warburton. HRA 1998: irreversible on 19th Nov 2010 issue of New Law Journal
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