CRITICALLY CONSIDER WHETHER THE COURTS HAVE HELPED THE HUMAN RIGHTS ACT 1998 ACHIEVE ITS OBJECTIVES

The courts further hindered chances of achieving the objectives of HRA in Leeds City Council v Price (2006)  where they controversially held that where there is a conflict between domestic law and Strasbourg jurisprudence, it is domestic law that should take precedent as it is “the cornerstone of our legal system”. Similar to the controversial decision in Ullah, this judgement overtly undermines the basic responsibility placed on the courts under section 3 of the act which requires them to interpret law “so far as is possible” in a way which is compatible with the convention. This appears to be explicitly contradictory of the courts duty under section 3 because if a domestic precedent is clearly incompatible with the convention, yet a court feels obliged to follow it on the grounds of Price, they would not only violate Section 3 of the HRA but also, and more harmfully, will be further adding to the legal confusion already built from the completely conflicting judgement given in Ullah; thus, appearing to hamper any chances of achieving the acts objectives. A possible solution to overcome the legal uncertainty caused by these two conflicting judgements could be to allow judges to follow domestic precedence with the option to give leave for appeal. Consequently, domestic precedent would therefore be followed but the case will have the potential to be heard in the Supreme Court who can accordingly make a new precedent for all other courts to follow. This will allow the courts to not only adhere to the judgement in Price and Ullah but at the same time have the capability to uphold their obligations under the HRA and help achieve its objectives.

It is certainly true that by carefully preserving the role of Parliament as the “ultimate law making authority in the UK”, the Act has prevented the courts from performing the role that they perform in some states, with the powers to strike down “unconstitutional legislation”. Thus, somewhat unsurprisingly, this is another area of law where the courts appear to be unsure how far their interpretation powers (under Section 3) can be used to amend legislation. It may be argued that the courts started off in the right direction acknowledging their “responsibility of interpretation”. In Poplar Housing (2001), Lord Woolf CJ highlighted the fact that Section 3 does not allow courts to legislate or amend legislation and stated that the courts duty is “simply to interpret the law”, hence, the court is not required to amend a statute in order to achieve compatibility. Likewise, a similar judgement was made in Re S where Lord Nichols re-emphasized the role of the courts stating that a meaning which had departed from the fundamental feature of an act of parliament is likely to have “crossed the boundary between interpretation and amendment”.  Both appear to valid statements as it is evident that the HRA does not impose any obligations or give any powers for domestic courts to amend legislation. Conversely, if it did, it would mean the judiciary would be taking up the role of the legislature and thus compromising the doctrine of parliamentary sovereignty and separation of powers.  However, subsequent House of Lords judgements did exactly this; causing significant legal confusion in regards to how widely courts can interperate legislation. In Bellinger v Bellinger (2003) it was held that Section 3 did not entitle the courts to interpret the words “man and woman” to include the claimant who had undergone a gender transplant. However, just a year later in Mendoza v Ghaidan (2004)    the courts seemed to have had a sudden change of heart and controversially overused their powers under Section 3 by declaring that the words “as his wife or husband” could be widely interpreted (or amended) to mean “as if they were his wife or husband”.  This gave the homosexual claimant the right to inherit his partner’s tenancy despite Lord Millet dissent on the grounds that the legislation did not intend to cover same sex relationships and in his opinion, amending the legislation would be improper and unlawful.  Yet again, these conflicting judgements demonstrate apparent legal confusion arising as a result of the courts effort to “blindly follow” the ECtHR to ensure their acting in compliance with the convention, with no guidance being given from Strasbourg clarifying their responsibilities. Similarly, in R v Lambert the defendant had been charged with possession of cocaine. Under Section 28 of the Misuse of Drugs Act 1971, the defendant was required to prove he was unaware of the possession. However, in this case, the defendant argued that this provision conflicted with his convention right to a fair trial; resulting in the HOL amending the legislation and changing the burden of proof of the defendant from having to prove he did not know to simply claiming he did not know. A similar scenario occurred in R v A (2001) where the courts were dealing with Section 41 of the Youth, Justice and Criminal Act (1999). Under this provision the defence was not permitted to question an alleged rape victim on her sexual past. However, the defendant argued this provision conflicted with his right to a fair trial and accordingly, the HOL controversially amended the legislation to allow the defence to interrogate rape victims on their sexual past. Not only had the courts gone against previous judgements in regards to their role under Section 3 but here they also declared a judgement which seems to be both legally as well as morally unjust. It was not the only option available to the courts. An alternative could have been to issue a “declaration of incompatibility” under Section 4 which would have sent the legislation to parliament to revise.

The principle of “declaration of incompatibility” is a tool given to the courts if they are unable to interpret legislation in a way which is compatible with convention rights. This is highlighted in Section 4 of the act and is used in order to achieve the objective that domestic laws should be compatible with convention rights and was used by the courts in Bellinger v Bellinger (2003). In Bellinger, the claimant claimed that the court should issue a declaration of incompatibility in regards to s11(c) of the Matrimonal Causes Act which did not acknowledging people who had undergone gender re-assingment. The claimant argued this had overtly violated Articles 8 and 12 of his convention rights and the courts held in favour of the claimant and issued the declaration. The courts then used Section 10 of the act which enabled a “fast track” procedure to make legislation compatible with convention rights. Thus, parliament removed the incompatibility by enacting the Gender Recognition Act 2004 which acknowledged individuals with a gender transplant. This suggests that the courts have understood their role and are aware of their powers in terms of issuing a declaration of incompatibility to ensure all legislation is compatible with convention rights and attempting to develop statute and common law to reflect convention rights hence, evidently attempting to achieve the objectives of the HRA.

Finally, another vital objective of the HRA is to ensure public authorities respect and adhere to convention rights. This is highlighted within Section 6 which makes it unlawful for a “public authority” to behave in a way which is incompatible with convention rights. Although, Section 6 fails to explicitly define what is meant by public authority, it specifically includes the courts and specifically excludes parliament in order to ensure Parliamentary sovereignty in maintained. Inevitably, this posed the question as to what exactly can be classed as “public authority” which the courts have attempted to answer this through subsequent case law.  In Wallbank (2003) the HOL held that a church council was not a public authority as it was a “self governing religious organisation” and thus, did not exercise delegated powers. Similarly, in LBC v Birmingham, the HOL held that a private care home, although under a contract with a local authority, was not a public authority and therefore the claimant (a resident of the care home) could not claim for breach of convention rights. The JCHR have criticised this judgement on the grounds that it was unjust and ignorant of basic human rights principles. This appears to be a valid criticism as the claimant in LBC was a frail 84 year old woman with Alzheimer’s and the care home had a responsibility placed by a public authority (the local council) to ensure convention rights were upheld which they evidently failed to so.

In conclusion, the evidence suggests although the courts have made a plausible attempt in helping the act achieve its objectives, at times they have faced substantial difficulties as a result of a lack of clarity and guidance from the ECtHR. Consequently, this has resulted in some controversial judgements such as the “judge-made law” in Ullah binding courts to follow Strasbourg Jurisprudence if they are “clear and consent”, thus, undermining the basic principles and objectives of the act. Inevitably, as the act is still relatively new, it is highly unlikely that all the objectives set out could have been achieved within the period of 10 years that it has been in force. The complexity of the act has meant that at times the courts have had difficulty in fully understanding their roles under the act such as in regards to their interpretation powers (as demonstrated in R v Lambert and R v A) which has resulted in unintentionally causing vast legal confusion in an attempt to uphold and achieve the objectives of the Act. Currently, with the conservative/Liberal Democrat coalition government, the future of the Human Rights Act appears to be unclear. David Cameron and the conservative party have made it apparent that they would like to repeal the act and would rather create, a somewhat American styled, “British Bill of Rights”; if enacted this will open another chapter for the courts in terms of establishing,  clarifying and upholding a British Bill of Rights but only time will tell.

Total word count excluding footnotes and bibliography = 2,493 words

Bibliography of Sources Used

Cases

• R. (on the application of Ullah (Ahsan)) v Secretary of State for the Home Department [2004] UKHL 26
• R (on the application of Alconbury Ltd) v Secretary of State for the Environment [2001] UKHL 23
• Leeds City Council v Price [2006] UKHL 10
• R v S and W [2007] EWCA Civ 232
• Mendoza v Ghaidan (2004( 2 AC 557
• R v A [2001] UKHL 25
• YL v Birmingham City Council (2007) UKHL 27
• Aston Cantlow PCC v Wallbank (2003)
• R v Lambert [ 2001 ] UKHL 37

Books

• John Wadham, Helen Mountfield, Caoilfhionn Gallagher, and Elizabeth Prochaska, “” (2009)
• ‘Justice’ - A Guide to the Human Rights Act 1998 - Questions and Answers (2000)
• Howard Davis, , (2009)
• Edwin Shorts and Claire De Than ‘Human Rights’ (Pearson Publishing Law Express) [2009]
• Andrew Clapham, ,

(2007)

• David Hoffman and John Rowe Q.C, ‘Human Rights in the UK’ (2009)

Journal and Legal Articles

• Elizabeth Wicks ‘Taking Account Of Strasbourg? The British Judiciary's Approach To Interpreting Convention Rights’ European Public Law, Volume 11, Issue 3 405 Kluwer Law International, 2005
• J Ruth Costigan, ‘Determining ‘Functions of a Public Nature’ under the Human Rights Act 1998: A New Approach - European Public Law’ (Kluwer Law International) [2006]
• Human Rights in Britain since the Human Rights Act 1998: a critical review – London Metropolitan University

Internet Sources

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