Under section 6(3)(b) of the Human Rights Act 1998 a public authority is obliged to act compatibly with Convention rights under section 6(1) of that act.
Regarding the limits placed on public bodies, here are a few examples of what is expected by them.
If a public authority such as a prison or a nursing home undertakes the care of a person they must take appropriate steps to ensure that the person is safe. If a death occurs due to the use of force used by a public authority, then there should be an effective official investigation. This duty to investigate may also be triggered in other situations where there has been a suspicious or unlawful killing. Where the work of a public authority concerns persons known to be dangerous, there is an obligation to take appropriate steps to safeguard the public from such persons. For example, this will be relevant to the parole and probation services, police and social services.
If we take a look at the following case, YL v Birmingham City Council, we have a case which brings into question whether a care home is in fact exercising functions of a public nature or acts of a private nature. If it was found that the care home was exercising functions of a public nature it would be subject to the obligations and limits placed on them under the Human Right Act.
Even though the appeal was dismissed and it was decided that Southern Cross were not carrying out functions of a public nature, it is still interesting to look at the case and the views expressed by the Lords. An issue which was bought up was that public money was being spent on providing care for those who could not afford it. Lord Bingham suggested that by doing this the care home was exercising functions of public nature. Under sections 21 and 26 of the National Assistants Act 1948, some of those for whom residential care is provided pay the full cost of the service they receive. A majority are subsided to a greater or lesser extent out of public funds.
The significant thing is that the state is willing to apply public funds to support those falling within sections 21 and 26 if, and to the extent that, they cannot pay for themselves, rather than leave them unaccommodated and uncared for. Baroness Hale of Richmond added on this area, “By providing a service to individual members of the public at public expense suggests that these are people for whom the public have assumed responsibility.”
Lord Bingham said, “When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace. It is, in my opinion, this case.”
Regardless of the decision, we are able to see the limits placed on public bodies if they fall under the category of performing functions of a public nature. In this case the rights protected would be Article 2, Right to Life, Article 3, Prohibition of Torture and finally Article 8, Right to Respect for Private and Family Life. Limits placed on public bodies will ensure that none of these are breached, that also goes for the rest of the articles which fall under the Human Rights Act.
The Human Rights Act requires our courts to respect laws passed by Parliament. Parliament can decide whether and how to amend the law. In this way, the Act balances the rights and responsibilities of the law-making and judicial parts of our Constitution, leaving the final word to the Democratic process. The Human Rights Act means all public authorities must ensure that everything they do is compatible with Convention rights unless an Act of Parliament makes that impossible. Prior to the Act coming into force, all Government Departments reviewed their existing legislation and procedures to see if they complied with human rights standards, and worked out ways which they could foster human rights positively. People are entitled to expect that public authorities respect their Convention rights.
Has the Human Rights Act gone too far in limiting parliamentary sovereignty and if so what changes could be made?
The Human Rights Act is definitely something we need and it certainly does a lot of good in protecting people’s rights, however, I believe it has gone too far in limiting parliamentary sovereignty.
The radical cleric Abu Qatada, I believe, is proof of this. Abu Qatada has been described as a “truly dangerous individual” and a “key UK figure” in Al Qaeda related terror activity. Despite this, and attempts to remove him from the country, he has been allowed to stay.
Abu Qatada was convicted in his absence by a Jordanian court in April 1999 for conspiracy to cause explosions. He was sentenced to life imprisonment with hard labour. Qatada maintained that the case against him was based upon the statement of his co-defendant which was obtained through torture. Medical evidence was shown to support this assertion. Now, I completely understand the issue that we have here surrounding evidence which was claimed to be obtained through torture, and that the judges from the Special Immigration Appeals Commission believed there would be a real risk that the preacher’s retrial in Jordan would be unfair because it would include incriminating statements made by men who were tortured by the secret police. However, you cannot escape from the fact that he remains a threat against national security. In a court statement the security service and police said he was providing advice which gave religious legitimacy to those “who wish to further the aims of extreme Islamism and to engage in terrorist attacks, including suicide bombings”. The authorities also said that a number of people arrested in connection with terrorism had described Abu Qatada’s influence. Also, Richard Reid, the would-be mid-Atlantic shoe bomber, and Zacarias Moussaoui, both jailed for involvement in terrorism, are said to have sought religious advice from him. The cleric’s sermons were found in a Hamburg flat used by some of those involved in 9/11.
Despite the Home Secretary Theresa May making many attempts to have Qatada deported back to Jordan, she has been so far unsuccessful. This is all down to the Human Rights Act. It is clear that our Government do not want this man in our country as it has been proved that he poses a serious risk to national security. The Special Immigration Appeals Commission in reaching their decision as to whether Qatada’s deportation was necessary in the interests of national security, considered the Secretary of State’s case to be “well proved”.
Why then, is this man free to roam our streets? The answer to this question is that the Human Rights Act has simply gone too far in limiting parliamentary sovereignty. How can it be anything else? We have allowed an act that sets out to do good to do the complete opposite, in this case anyway. Instead of the Human Rights Act doing good, it has now been used in a way that has allowed our national security be put at risk.
If Britain had its own Bill of Rights we would be in a much better position to deal with situations such as that of Abu Qatada. The Prime Minister himself said, “A British Bill of Rights will ensure that “decisions are made in this Parliament rather than in the courts”. If a British Bill of Rights was in place then Abu Qatada would have been successfully deported back to Jordan by now, as it is, our Government continues to fight to have him deported. This is not how it should be, if our Government does not want somebody who poses a risk to national security to be in this country then we should have the power to deport them, regardless of Human Rights. By allowing Qatada to stay in this country, the rights of millions to be protected by the state are side-lined all for the sake of one person, how can this be justified? The man has been convicted; therefore, he should face his punishment and stop hiding behind the Human Rights Act. We should have more power to deal with individuals who hide behind and abuse acts such as the Human Rights Act. Foreign nationals currently in the UK, who are either reliably suspected of or guilty of, serious crime including terrorist activity, cannot be returned to their own countries to face justice because of the HRA. This is wrong and needs to change.
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF Ed.) [1915] 20
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF Ed.) [1915] 20
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF Ed.) [1915] 68
Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF Ed.) [1915] 87
Parliamentary Sovereignty - - Accessed 3 December 2012
Slapper & Kelly, The English Legal System, 7th Edition, (Cavendish Publishing, First Published 2004) 98
The Human Rights Act - - Accessed 9 December 2012
Human Rights Act 1998, s 6(3)(b)
Ministry of Justice, Human Rights: Human Lives, A Handbook for Public Authority, - Accessed 12 December 2012
YL v Birmingham City Council, [2007] UKHL 27 [18]
YL v Birmingham City Council, [2007] UKHL 27 [67]
YL v Birmingham City Council, [2007] UKHL 27 [20]
Department for Constitutional Affairs , A Guide to the Human Rights Act 1998, Third Edition 2006, Pages 5-6 - Accessed 12 December 2012
Dominic Casciani, - Accessed 12th December 2012
Othman v United Kingdom (2012) 55 E.H.R.R. 1 – Page 1, Para 2
Othman v United Kingdom (2012) 55 E.H.R.R. 1 - Page 54, Para 2
Francesca Klug - - Accessed 13th December 2012