Anyone who wanted to enforce their right at the ECtHR had a long and costly journey. The Government's White Paper said "it takes on average five years to get an action into the ECtHR once all domestic remedies have been exhausted: and it costs an average of £30,000." The Government also conceded that the belief that the rights and freedoms guaranteed by the ECHR could be delivered under domestic common law was flawed, acknowledging that incorporation was "necessary" and "that it is not sufficient to rely on the common law."
The incorporation of the EHCR in the shape of the HRA on 2nd October 2000 changed the effect the ECHR had on domestic courts. In its long title the HRA is described as 'An act to give further effect' to the rights and freedoms guaranteed under the ECHR. In reality this means that there has been a balancing act to incorporate ECHR rights while retaining Parliamentary sovereignty. The overriding objective is to weave the ECHR into the domestic legal system so all courts consider ECHR arguments and rights that could be obtained in Strasbourg with the minimum of disruption. The Lord Chancellor (Lord Irvine of Lairg) made it clear in the House of Lords report stage that "the ECHR under the HRA is not made part of our law. The HRA gives the ECHR a special relationship which will mean that the courts will give effect to the interpretative provision…but does not make the convention directly justiciable as it would be if it were expressly made part of our law."
The HRA created a statutory requirement that all legislation be read and given effect in a way that is compatible with the ECHR. Under section 3 primary and secondary legislation must be read and given effect in a way that is compatible with the ECHR wherever possible, as seen in the case of R v Offen where the second offence punishment of life imprisonment was overruled as a breach of Article 3. Therefore it is no longer necessary to find ambiguity in order to use the ECHR as an interpretative tool.
Additionally section 6 of the HRA requires public authorities, which includes the courts, to act compatibility with the incorporated ECHR unless they are prevented from doing so by statute. Meanwhile section 7 gives the victim of any act of a public authority that is incompatible with the incorporated ECHR the power to challenge the authority in court. Only victims or potential victims can bring proceedings but this will include most private litigants in private law proceedings. Victims must be directly affected by a measure but parents can claim to be directly affected by a wrong done to their children. Claims can also be made by a representative of a victim which allows pressure groups to support a victim by giving financial support. This can be seen in the case of Venables and Thompson v News Group News. Non victims can rely on section 3 and the common law approach to ECHR obligations.
Therefore in all cases where ECHR rights are in question the HRA gives 'further effect' to the ECHR whether the litigants are private persons or public authorities. This is achieved by asking courts to decide cases compatibly with incorporated ECHR rights unless prevented from doing so by primary legislation or by provision made under primary legislation which cannot be read compatibly. The courts are also obliged to interpret existing and future legislation in conformity with the ECHR wherever possible and by requiring courts to take Strasbourg case law into account in all cases, in so far as they consider it relevant.
Even though the HRA will not make ECHR rights directly enforceable against a private litigant or organisations which sometimes act as public authorities but are in breach for private functions, the HRA still has an effect on the outcome as the courts are obliged to interpret legislation in conformity with the convention wherever possible while ensuring judicial discretions and application of common law or equitable rules are compatible with the ECHR. This can be seen in the case of Goodwin v United Kingdom.
Section 7 gives directly enforceable rights against public bodies and against other bodies in their part function of public functions. It allows proceedings for failure to comply with the ECHR rights protected by the HRA to be brought by judicial review subject to a statutory obligation defence. It also allows a new cause of action against public bodies which fails to act compatibly with the incorporated ECHR. Incorporated ECHR rights are also available as a ground of defence or appeal in cases brought by public bodies against private bodies.
The HRA does not allow the ECHR to be used to override primary legislation, so if a stature is clear in its terms and clearly incompatible with the incorporated ECHR the court must give it effect. Additionally if subordinate legislation made under primary legislation is incompatible with the incorporated ECHR rights it will be given effect despite a possible breach of the ECHR. This ensure that Parliamentary sovereignty is preserved. However if legislation cannot be read so as to comply with the incorporated ECHR the higher courts have to power to issue a declaration of incompatibility and a fast track procedure is available to allow the Government to legislate to remedy any incompatibility. As Lord Cooke of Thorndon said during Parliamentary debates "..the common law approach to statutory interpretation will never be the same again" and "(section 3) will require a very different approach to interpretation…traditionally the search has been for the true meaning: now it will be for a possible meaning that would prevent the making of a declaration of incompatibility."
This leaves us with three categories of provision in UK legislation, firstly where provisions are ambiguous on their face, secondly where provision which are not ambiguous on their face but it is possible to read conformity with the incorporated ECHR, as seen in the case of R v Secretary of State for the Home Department, ex parte Brind. Third are provisions which are not ambiguous and cannot be read compatibly with the incorporated ECHR as seen in the case of Saunders v UK.
In respect of future legislation ministers promoting bills are required to make a declaration that the bill is compatible with incorporated rights or state that the bill is not compatible but the government wishes it to proceed anyway. If a certificate of compatibility is given it enhances the presumption of compliance and should encourage the courts to ensure compatibility wherever possible.
As we can see from the discussion above more could be done to give full effect to the rights and freedoms guaranteed by the ECHR in the UK. In its White Paper the government said it had reached the conclusion that courts should not have the power to set aside primary legislation past or future and this conclusion comes from the importance the government gives to Parliamentary sovereignty. The government did not want to confer on the judiciary a general power over the decisions of an elected Parliament. Overturning this decision would allow fuller effect to be given to the ECHR, but even though the government is not bound to act even after a declaration of incompatibility if it did not do so it would seem certain that the victim would seek satisfaction in the ECtHR, which would then impose an obligation on the government as a matter of international law to remedy its violation.
In regard to public authorities limits exist again in relation to the preservation of Parliamentary sovereignty. Section 6(2)(a) provides that section 6(1) does not apply if the public authority could not have acted differently as a result of one or more provisions of primary legislation. Section 6(2)(b) provides that section 6(1) does not apply if the authority was acting to give effect to or to enforce one or more provisions made under primary legislation which itself cannot be read or given effect in a way which is compatible with the convention rights.
The second limit on the effect of section 6(1) is that Parliament in its legislative capacity is not a public authority and so is not bound. Though an omission of a public authority can be challenged it does not include a failure to introduce proposals for legislation or a remedial order. This means that it is not possible for an individual to sue the executive for failing to introduce legislation which is necessary to give effect to a convention right, or the legislature for failing to pass it.
The HRA does not incorporate Article 13 of the ECHR, the duty to afford real and effective remedy for a convention right. Therefore courts and tribunals of limited jurisdiction are not able to award a remedy if it is outside their statutory power to do so, even if it might be necessary to afford just satisfaction of a convention right. The only remedies are those specified in the HRA.
There is no remedy in damages where the breach of the ECHR is caused by an Act of Parliament. In the absence of Article 13 it is not clear how just satisfaction will be afforded in cases where the breach of the ECHR is a consequence of statutory provision and where a court has made a declaration of incompatibility. A litigant may have to pay costs for a lost case because of a statute which breached his or her ECHR rights, a situation which would act as a deterrent to bringing such actions. Even if costs are awarded against the government following a declaration it may still leave the litigant without an effective remedy which would result in a trip to Strasbourg for an effective remedy unless the government took steps to act in compliance of the declaration. It is thought that the government saw the inclusion of Article 13 as a wild card for the judiciary to grant damages in more circumstances that they envisaged.
Also missing from the HRA is Article 1, the obligation to respect human rights and secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the ECHR. However, complaints can still be made to the ECtHR in respect of any breach of a state's provision, as seen in the case of A v United Kingdom.
Finally, there are additionally reservations in place when a law in force is not in conformity with a ECHR provision. In the United Kingdom there is a reservation in place in respect of Article 2 which sets out two principles which state that no person shall be denied the right to education, and that in relation to education and teaching the state shall respect the right of parents to ensure such education is in conformity with their own religious and philosophical convictions. The government accepts the second principle so far as efficient instruction and training is available and in avoidance of unreasonable public expenditure.
Bibliography
- Blackstone's Guide to the Human Rights Act 1998, Second Edition, John Wadham & Helen Mountfield
- Civil Liberties and Human Rights, Third Edition, Helen Fenwick
- Beagle.org.uk
- Lexis-Nexis
Rights Brought Home: The Human Rights Bill 1987
Hansard HL, 29 January 1998, Col. 421
Hansard HL, 3 November 1997, col. 1273
Hansard HL, 3 November 1997, col. 1272
