As a way for the English government to ensure that it attempted to certify UK nationals of their fundamental rights, the Human Rights Act was put into force on the 2nd of October of 2000
'The Human Rights Act in its present form, besides failing to properly incorporate the European Convention on Human Rights, gives the United Kingdom a defective law which puts it at the bottom of any international league table of bills of rights. The Act talks of rights, but keeps them at arms length and has as a consequence been hesitantly applied by the courts.' Discuss.
Since 1966, Strasbourg was the final resort for British citizens to claim their rights. It was frequently criticised for its "long and expensive process [...] [which sometimes appeared] to be "Europe" imposing its will on the UK."1 As a way for the English government to ensure that it attempted to certify UK nationals of their fundamental rights, the Human Rights Act was put into force on the 2nd of October of 2000. However, the question is: How effective is the Human Rights Act of 19982 in delivering rights to British civilians? In its regard, the role of parliamentary supremacy and the courts in relation to the deficiencies of the Act in question, mainly sections 3, 4, 6 and 8 will be discussed in the following essay.
Parliamentary sovereignty is the most crucial concern in the protection of human rights in UK. According to AV Dicey, the doctrine of parliamentary supremacy ruled the limits of its power by stating that it obtains "the right to make or unmake any law; and, [...] that no other person or body is recognized by the law of England as having the right to override or set aside [its] legislation". However, at this time, citizens had what its called 'liberties' which would allow them to do anything that law would not forbid. Controversially, later on, the HRA was enacted and in order for government to protect its powers, it did not conceive much control for the Act in question to strike down primarily legislation. Supremacy of Parliament was kept due to the fear "that the Act would transfer too much power from an elected Parliament to the judiciary."3 Even though in relation to how Dicey expected that Parliament acted in order not to abuse power in the country, acting reasonably, it still has the power to repeal the HRA which constitutes the basic assurance of human rights in UK. In accordance with Lord Nicholls in the case of In Re S, "the Act seeks to preserve parliamentary sovereignty [and it] maintains the constitutional boundary." On further analysis, it can be noted that Parliament can enact any legislation that would offend the Convention without anyone being able to decline it, which brings us, to the same conclusion as Lord Irvine, stating that "the ultimate responsibility for compliance with the Convention must be Parliament's alone"4
If a breach of the convention occurs the court cannot interpret the provisions in a complex way (it would be against section 3) nor can they declare that the Act is void. Nevertheless, under section 4 of the HRA, Parliament offers the courts an opportunity to make a declaration of incompatibility whenever they find that legislation is not acting in harmony with the Convention. In the case of Anderson 5, it is seen that a declaration can be done, if the express words of a provision avert the interpretation of section 3 that would be compatible with the Convention, therefore not letting a politician as the Home Secretary to decide the minimum period that a murderer would stay in prison. Moreover, the declaration seems to lack of effectiveness due to its discretionary nature, although courts are encouraged to do it, it will not affect the validity, the continuing operation or enforcement of the provision in respect of which it was given, until Parliament revises primary legislation. This will possibly, lead the courts to avoid showing the problem to Parliament unless a "clear limitation on Convention rights is stated in terms"6
It may also be argued that there is no formal procedure set out in the Act for courts that wish to make a pronouncement on incompatible legislation and only high courts7 have that privilege. Declarations of incompatibility will not include failures to introduce legislation or remedial orders and they are according to Sue Williscroft "the biggest remedy for any complainant at the court is that after a breach has been found"8 In contrast, these declarations are not bound on the parties and even though the government has the retrospective power it would be difficult to recognize the situations ...
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It may also be argued that there is no formal procedure set out in the Act for courts that wish to make a pronouncement on incompatible legislation and only high courts7 have that privilege. Declarations of incompatibility will not include failures to introduce legislation or remedial orders and they are according to Sue Williscroft "the biggest remedy for any complainant at the court is that after a breach has been found"8 In contrast, these declarations are not bound on the parties and even though the government has the retrospective power it would be difficult to recognize the situations where the power would be exercised.9
Moreover, government created the 'fast-track' procedure under section 10 of the HRA using delegated legislation, with the aim that the executive would revise legislation with the purpose of removing the incompatibility. On the other hand, this has not been used very often by the courts and it is seen that a few overturns are occurring from high courts to lowers courts. Additionally, the Parliament still has the sole power to amend, repeal or enact laws.10
Some controversial ideas arise in the interpretation of section 6 when it is clearly stated that public authorities cannot "act in a way which is incompatible with a Convention right."11, but in contrast if there is an Act in a breach of the Convention, public authorities will "have to obey [the] Act of Parliament even if this is against [citizens'] rights"12. Section 6 of the Act, fails to define 'public authority' and instead, it provides exceptions to it. It is clear that this section wants to preserve parliament and prerogative powers; however, the wording in the section is narrow. Courts have to interpret what the Parliament meant by the term "public function" which includes: to what extent the body is carrying an important function or if it is taking a place of a local authority such as Donoghue v Poplar13 in where it was declared that Poplar was a public authority due to the motivation of a non-profit organization which provided houses for rent. The providence of a public service will also be vital as it can be seen in Aston Cantlow14 where the church was not found as a public body because its functions were not only of public nature. Moreover, the inclusion of section 6 (3) (a)15, means that individuals will be able to rely on Convention grounds in judicial review proceedings against the lower courts, however, the decisions of the higher courts cannot be judicially reviewed. It can also be foreseen that due to the undefined explanation of "public authority", difficulties may arise for nationals, who feel that their Convention rights have been broken, to be able to demonstrate that the body is or not exercising its public functions. In result, the applicants may only get a remedy in Strasbourg which would indicate that HRA is not in its perfect functions to provide full rights to UK citizens.
Being the most significant matter in an Act, the remedies clause of the Convention was omitted. Article 13 of the Convention which guarantees an effective legal remedy for an infringement of Conventional rights was absent in the HRA, instead section 8 was made stating the remedies available as limited by the powers of public authorities.
Due to article 13 not being a Convention right defined in section 1(1) of the HRA, the failure to grant an effective remedy is not against Convention rights under the Act. However, in conformity to Lord Nicholls in In Re S16, there is some disparity between article 13 of the Convention and section 8 of the Act. While the article "guarantees the availability at a national level of a remedy to enforce the substance of the Convention rights", section 8 only provides it in English law. This is seen in the case of In Re S, where the failure of a public authority to comply with its responsibilities under the Children Act 1989 would not be identified as incompatible with family rights under article 8 and therefore did not provide a remedy to the litigants under the HRA17. Furthermore, there is no express obligation upon courts to provide effective remedies which can occasionally leave applicants without one. Nonetheless, it is seen that at present, litigants are being granted successful remedies, which would be due to the court's attitude on "interpret[ing the act] in a broad and generous way to give effect to fundamental rights."18 As a result, although the act does not provide good clauses on remedies, the outcome of it is fairly successfully with the intention of protecting "an important constitutional instrument"19. With the principle of providing 'just satisfaction', damages can also be seen as deficient under the Act. Damages are not granted by all courts, they are very rare indeed and limited according to other remedies allowed. Besides, section 9 of the Act restricts the judiciary to award damages in criminal proceedings. However, if the judiciary provides damages, it comprises the possibility to award them on pecuniary (e.g. financial loss) and non-pecuniary loss (psychological distress). Moreover, if a litigant took his/her case to all courts and has not yet found an effective remedy, there is a possibility to apply to the European Court of Human Rights, which again is showing that the Act is inefficient.
The role of British courts in this topic is incorporated in the traditional structure of the supremacy of parliament, in which its "sole power [...] is to decide and enforce what is the law and not what it should be"20 Furthermore, it is also seen how section 3 invites the courts to interpret statute in a best convention-compatible way that it could lead courts to interpret the meaning that Parliament wanted to give the ruling, which would revise it and not just interpret it as Lord Nicholls says in In Re S21. Additionally, according to Lord Diplock, the ambiguous wording of an Act will give a wider discretion for judges to interpret it. In the case, of a judge not interpreting it in the correct way, it can "endanger [...] public confidence in the political impartiality of the judiciary, which is essential to the confidence of the rule of law".22 It can be argued that this could lead courts to confuse the political reality with the power to interpret the intention of the executive.23
Moreover, the HRA does not provide guidance to how the courts should provide limits of the freedoms that are set by the Conventional rights. For instance, the restriction of the rights "which are 'necessary in a democratic society' [...] including the rights and freedoms of others"24 Additionally, the Conventional restrictions should be proportionate to the freedoms, in accordance to some previous case law which provides us with the doctrine of proportionality.25
Furthermore, difficulties have also arisen in applying the Act as courts are expected to apply it in accordance to the same method as the bodies in Strasbourg, which will impose another procedure. In conformity with David Lock: "The courts are in almost a unique position in relation to the Human Rights Act as on the one hand they are public bodies who must act in accordance with the Convention, while on the other hand they must determine the behavior of other public bodies with reference to the Convention."26 It may then be approached that British courts are not prepared to apply this act correctly, in that way not providing UK nationals with the rights they claim for.
Concluding, contrasting to the earlier situation, the HRA represents a minimum guarantee of human rights in this country. However, it does not embrace human rights to its full potential due to the deficiencies mainly around public authorities, declarations of incompatibility and the remedies given. Additionally, it is a very weak Act in relation to the rest of Europe and many commonwealth countries which obtain a written constitution. In contrast, in those countries the judiciary has the power to strike down primary legislation if not in conformity with human rights. This, agreeing to Lord Irvine "suggests a closer relationship with the United States doctrine of Constitutional Supremacy than the British doctrine of Parliamentary Supremacy"27 Additionally, as a result of this being a human rights legislation, perhaps it was expected that a clause preventing the abuse of the executive over UK citizens would be included, but it was not. It has been agreed that the Canadian Charter would be a very good choice as a human rights provision for UK.
Word Count: 2000
Bibliography
Case Law
* Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another [2003] UKHL 37
* Blackburn v Attorney-General [1971] 2 All ER 1380
* Brown v Scott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681
* Donoghue v Poplar Housing and Regeneration Community Association Ltd (2001) UKHRR 693
* In Re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291
* R. (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
* R. (Daly) v Secretariat of State for the Home Department [2001] 2 AC 532
* R. v A (No. 2) [2001] 2 WLR1546
* R. v DPP ex p Kebilene [2000] AC 326
Books and Articles
BBC News - "Human Rights Act: a social revolution?" - 1st October 2000
http://news.bbc.co.uk/1/hi/uk/949078.stm
Department for Constitutional Affairs - Speeches "The Human Rights Act - So Far So Good", 14 February 2001, http://www.dca.gov.uk/speeches/2001/lc140201.htm
Department for Constitutional Affairs - Speeches "Speech on Human Rights Act", 5th October 2000, http://www.dca.gov.uk/speeches/2000/dlcol051000.htm
Department for Constitutional Affairs - Speeches "The Tom Sargant Memorial Lecture : the Development of Human Rights in Britain under an Incorporated Convention on Human Rights" 16 of December 1977 http://www.dca.gov.uk/speeches/1997/tomsarg.htm
Article on Human Rights Act by Disability Alliance: http://www.disabilityalliance.org/human.htm
City of Bradford Metropolitan District Council, "Public Order, Justice and Rights - Human Righta Act" by Sue Williscroft. http://www.bradford.gov.uk/public_order_justice_and_rights/
"Delivering Rights - How the Human Rights Act is working" Chapter: "Remedies for Breach of Human Rights: Does the Human Rights Act Guarantee Effective Remedies?" by Richard Clayton QC
Edited by Jeffrey Jowell and Jonathan Cooper, Oxford - Portland Oregon 2003 (Justice)
"Human Rights - The 1998 Act and the European Convention". Chapter 1: "The Status of the European Convention of Human Rights in United Kingdom Law" Sweet and Maxwell Publishing, London 2000
"Human Rights Act: A success Story?" Chapter: Resources, Rights and Environmental Regulation by Robert G. Lee, Blackwell Publishing, Oxford, 2005
"Human Rights Act at work" Chapter 8: Human Rights Act at work: possibilities and problems. Article: "The Human Rights Act: uncertainly and unpredictability", Institute of Employment Rights London 2000
BBC News - "Human Rights Act: a social revolution?" - 1st October 2000 http://news.bbc.co.uk/1/hi/uk/949078.stm
2 The Human Rights Act 1998 will later be referred as HRA in this essay.
3 Lord Irvine in "The Human Rights Act - So Far So Good", 14 February 2001, http://www.dca.gov.uk/speeches/2001/lc140201.htm
4 Lord Irvine in "The Tom Sargant Memorial Lecture : the Development of Human Rights in Britain under an Incorporated Convention on Human Rights" 16 of December 1977 http://www.dca.gov.uk/speeches/1997/tomsarg.htm
5 R. (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
6 Lord Steyn in R. v A (No. 2) [2001] 2 WLR1546
7 High courts naming: the House of Lords, Court of Appeal, High Court, the Judicial Committee of the Privy Council, the Courts-Martial Appeal Court and in Scotland, the High Court of Justiciary or the Court of Session. (s 4 (5))
8 City of Bradford Metropolitan District Council, "Public Order, Justice and Rights - Human Righta Act" by Sue Williscroft.
9 "Delivering Rights - How the Human Rights Act is working" Chapter: "Remedies for Breach of Human Rights: Does the Human Rights Act Guarantee Effective Remedies?" by Richard Clayton QC
0 "Human Rights Act: A success Story?" Chapter: Resources, Rights and Environmental Regulation by Robert G. Lee p 119
1 Section 6 of the Human Rights Act 1998
2 Article on Human Rights Act by Disability Alliance
3 Donoghue v Poplar Housing and Regeneration Community Association Ltd (2001) UKHRR 693
4 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank (2003)
5 Section 6 (3) states "In this section "public authority" includes (a) a court or tribunal"
6 In Re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291
7 "except to the extent they constitute infringements of the right of access to the court" - "Delivering Rights - How the Human Rights Act is working" Chapter: "Remedies for Breach of Human Rights: Does the Human Rights Act Guarantee Effective Remedies?" by Richard Clayton QC
8 Lord Hope in R. v DPP ex p Kebilene [2000] AC 326
9 Lord Bingham in Brown v Scott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681
20 Lord Salmon in case of Blackburn v Attorney-General [1971] 2 All ER 1380
21 In Re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291
22 Lord Diplock in Human Rights Act at work" -Chapter 8: Human Rights Act at work: possibilities and problems. Article: "The Human Rights Act: uncertainly and unpredictability" p 220 Institute of Employment Rights London 2000
23 "Human Rights Act: A success Story?" Chapter: Resources, Rights and Environmental Regulation by Robert G. Lee p 116
24 "Human Rights Act at work" -Chapter 8: Human Rights Act at work: possibilities and problems. Article: "The Human Rights Act: uncertainly and unpredictability" p 218 Institute of Employment Rights London 2000
25 R. (Daly) v Secretariat of State for the Home Department [2001] 2 AC 532
26 David Lock in "Speech on Human Rights Act", 5th October 2000, http://www.dca.gov.uk/speeches/2000/dlcol051000.htm
27 Lord Irvine in "The Human Rights Act - So Far So Good", 14 February 2001, http://www.dca.gov.uk/speeches/2001/lc140201.htm
