The doctrine of Margin of Appreciation, a tool, allows national Governments certain discretion in deciding how the Convention applies domestically. In Frette v. France, this tool was used to avert a qualified right, Art. 8. A qualified right is binding but subject to any limitations which may be instilled within a country’s law or just within society. The case centred on a gay adoption, whose application was refused outright by the French Social Services. It went on to appeal until the case was brought before the European Court of Human Rights (ECtHR). The French Government were concerned with the interests of the child, who may not want to be adopted in this manner. The ECtHR accepted their argument. This is from the judgment of the ECtHR:
“It is not uncommon for the ECtHR to give a wide margin of appreciation on matters to reflect in particular diversity of practices among member states on issues of morality”.
The margin of appreciation was a necessary facet for the UK Government due to the constant flare ups of their relations with the Irish Republican Army, IRA.
The last aid to interpreting this jurisprudence is a horizontal application of rights. That is any decision given by the court is binding on all the bodies exercising a public function. This is done to ensure that the effect of a ruling will, thus, be put to effect immediately. Even though the law is certain, rights are changing. Rights will have more force in being interpreted alongside the criminal law. Art. 19 of the HRA, effectively makes the ECtHR the last court of appeal, hearing cases brought by states against states or referred via the commission pursuant to its decision on an individual application. Art. 13 is also a procedure whereby persons are allowed to seek a remedy when all lines of appeal are exhausted in their country, they will be allowed to make an application to the ECtHR.
In Hatton and Others v. U.K, there was a longstanding argument between residents and BAA regarding the night flying across flight paths along West London. The case started prior to the implementing of the Human Rights Act. After a consultation paper in 1993, 14 years after the case began. It was sent to Strasbourg in respect of Art. 8 and Art. 13. BAA’s argument was that under the Civil Aviation Act it was not permissible to allow any action to be brought against a plane flying over any property subject, to any Air Navigation Order, or via the Secretary of State. This meant that Article 8 of the treaty was not substantially interfered with to constitute a breach and warrant a stoppage to night flights. Art. 13 was then the next line of action. The ECtHR awarded £70,000 in compensation as pecuniary damages which just covered the applicants cost of litigation. The voting is determined by seven judges, in this instance there was a 5 to 2 vote for breach of Art. 8 and a 6 to 1 vote for violation of Art. 13.
The impact of this case refers to the ability of pressure groups and local residents to have a say in the way a public function operates within its locality.
The 14 Articles that make up the Human Rights Act are divided into rights. They are classified as: Absolute right’s, Articles 2, 3 and 4; Limited right’s, Articles 5 and 6; and Qualified rights, Articles 8, 9, 10, 11 and 12. Article 14 is protection from discrimination. The Protocols will, fill in the gaps not covered in entirety in the original Act, such as the protection of the environment.
In order to ensure compliance there will be the Parliamentary Human Rights Committee, which will analyse draft and proposed legislation in order that it complies with the Act this includes, all White Papers and consultative documents.
The Rights above are there to ensure whether prima facie, a right has been violated, therefore an Absolute right, requires, on the face of it, an action be brought for the applicant. An Absolute Right was violated in Price v.U.K., the applicant was detained for non – payment of monies, however the ‘[a]pplicant was disabled to the extent that she was four – limb deficient as a result of Phocomelia […] due to Thalamide.’ She totally relied on her wheelchair for mobility. Prior to being sent to jail Price had to endure time in police custody under circumstances not favourable for a disabled person. Thereafter, she was sent to a prison hospital where there were the necessary arrangements made for disabled, already in place. Whilst at Her Majesty’s Pleasure, the applicant complained of her Human Rights being violated. She was seen naked from the waist – down and was attended to by male officers whilst in the toilet. This has enabled her to bring an action for violating Art. 3, there was a prima facie violation, for which the applicant wanted non- pecuniary damages. The case was found in her favour by the ECtHR.
Limited Rights, such as the right to liberty and the right to a fair trial are limited by the Convention. For example, in the case of Z and Others v. U.K, the children wanted to sue their local authority for negligence, under Art. 6. ‘Negligence struck out by the House of Lords as it would not be fair, just and reasonable […] [w]ould imply new duty of care at common law’ to sue their local authority as this would put a strain on the Governments purse. This is due to cases where there has been an irregularity of communication between families like these and the council, however it is not for the court at Strasbourg to rule on the appropriate content of domestic law, the interference with, Art. 6 cannot be justified. This was a landmark case, as from October 2000 there will be compensation as a remedy, awarded, for non – pecuniary damage to those children who allege damage in the hands of their local authority.
Qualified rights are the ones that affect the majority of people everyday throughout their lives. The basis of these rights means that there will require a lot of judicial interpretation, by judges not ministers. An example of this is Fielding v. U.K., the husband was left three children by his late wife. He applied to the Social Services to be granted child benefit. However they refused his application on the grounds that it was only available to women, he was not allowed any extra tax relief either. By order of ECtHR under, Art. 8 the applicant received £50,000 in damages. Fielding had a right violated for which he was entitled to qualify for.
From October 2000 any Bill will come under scrutiny to consider whether a provision contained would interfere with a Qualified Right and whether the right being interfered with is permissible under the rules of interpretation. The aim of the Human Rights Act was to develop a coherent framework which could be used over a wide area. The prevention of discrimination, Art. 14, is essential in implementing human rights, it can be intertwined with many other Articles, and cause a case to be decided differently if it in fact does come into context, evident in the Diane Pretty case. Any Act coming into force from October 2000, will be screened to see if there is a direct or indirect interference with discriminatory right, because ‘[t]he right to enjoy convention rights without discrimination is parasitic on those other rights.”
The discrimination talked about was the fact that there are people able to commit suicide and those that cannot themselves commit suicide, and it would seem unreasonable to make the courts make that distinction, as it would undermine the Suicide Act, section 2(1):
“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to imprisonment for a term not exceeding 14 years.”
The Suicide Act was the piece of primary legislation which could not be overruled by the Human Rights Act, as the rules of proportionality were appropriately guided.
Judicial interpretation will largely increase. Prior to the implementation of the Act, a Bill which is lobbying to become an Act would normally be registered by a member of Parliament or a Minister, it then gets a preliminary reading, after which it either gets no backing or read for the second time. This means it has passed the house and will become law. However, if a Bill is now meant to comply with the directives of the Human Rights Act, there will be more judges involved in construing the Bill to be in compliance with the HRA:
“Judges will be able to rewrite sections of the Acts by reading into them words that are not there and by massaging away any potential conflicts with the UK constitution”
‘The Human Rights Bill would require judges to produce a decision on the morality of conduct, not simply its compliance with the bare letter of the law’. The Act is not entrenched and can be repealed, like any other Act. Moreover Parliament Sovereignty is not affected. Parliament still can either ratify or produce a ‘statement of incompatibility’. ‘If a National Government were to continually opt out from the Act’s provisions and therefore misplace consistency from their dealings they risk derogating from the relevant Article or Articles of the Convention, or in the extreme case may denounce the Convention as a whole’. In the UK this has been done to ensure that Parliament takes caution in allowing the process to be studied, especially for the judiciary who, are probably the most resistant to the new concept.
The Lord Chancellor has elected eight new High Court judges to deal with the additional workload which will no doubt be generated by Human Rights claimants. The power of the judiciary will be enormously increased and their influence over the passing of Bills of Parliament, which prior to the Act was the sole responsibility of Parliament’s Ministers. They will be heavily involved in making changes to the UK constitution. Judges will use their power to scrutinise legislation rigorously against fundamental freedoms guaranteed by the Convention. They will not become politicised, as the ultimate decision to amend legislation to bring it into line with the Convention, however will rest with Parliament. This is becoming more like an American constitution.
Prior to October 2000, to be heard in Strasbourg all avenues of appeal need to be exhausted. Nowadays it will be possible to make an application during the course of a proceeding.
The impact on the English Legal System will be that all public bodies must ensure that their current practices are Human Right’s friendly, for example, there is a lot of shaking up within the NHS and other public functions, done in order to reduce the likelihood of an unwanted lawsuit, as in the case of Z and others v. U.K:
“ Court of Appeal exploring impact of HRA 1998 in relation to the courts role in maintaining ongoing scrutiny of care plans following the making of a care order under CA 1989 s.31”
It may not be evident that there is a flaw in the system until someone is affected. The Human Rights Act will put in place basic rights where none existed before. This will become elementary, in being allowed to have your human rights protected if you fall within its jurisdiction. However it has only been in operation for three years, as a result, the impact of change is still slightly unclear.
Bibliography
R. Beddard. – Human Rights & Europe. – 3rd Edition
G. Slapper and D. Kelly. – Sourcebook on the English Legal System. – 2nd Edition
Eddey and Darbyshire. – Edeey & Darbyshire on the English Legal System. – 7th Edition
Sweet and Maxwell. – Nutshells : Human Rights. – 1st Edition
JOURNALS
Legal Action
October 2001. p.11
November 2001. p.9
New Law Journal
(2002) Issue 152 pg 693
(2002) “ “ 142 pg. 721
(2000) “ “ 150 pg. 556
(2002) “ “ 152 pg. 2002
Auditing for Human Rights Compliance – Report into the Parliamentary Human Rights Committee. Justice 1999
WEBSITES
(Eurolaw)
(Lawtel)
(ECtHR)
Incorporated in English law in 2002, October.
Sourcebook on ELS by G. Slapper. Pg.49
Eddey and Darbyshire on the English Legal System. Pg. 82.
Art 8(1):Right to respect for private and family life
Art. 13:To allow those to seek a remedy where all national ones exhausted
British Airports Authority
Civil Aciation Act 1971. Section 2(1)
Facts of the case from Price v. UK (ECtHR)
Art. 3: No one shall be subjected to torture or inhuman or degrading treatment or punishment.
Art. 6: The protection of interests of juveniles. Moral justification
Legal Action October 2001. on pg. 11
They include the right to respect for private and family life, freedom of expression, religion and association, the right to peaceful enjoyment of property and, to an extent, the right to education.
Judgement from ECtHR (2002) 152 NLJ 852
Eddey and Darbyshire on the English Legal System. ch. 4
Eddey and Darbyshire on the ELS. Ch. 4
Civil Liberties & Human Rights. Richard Stone. 4th Ed.
Legal Action October (2001) pg. 11
