The Act does not create any new criminal offences, but does apply to the criminal courts. The Act does not take away or restrict any existing human rights recognised in the country.
Unlike the European Communities Act 1972 (ECA), Convention rights can be waived, but only if the waiver is unequivocal and does conflict with an important public interest. Many of the Articles do allow rights to be breached if for example, it is in accordance with the national laws of the country or is necessary in the interests of national security, public safety or the economic well-being of the country or for the prevention of crime or disorder, or the protection of health or morals, or to protect the freedom and rights of others.
European law was incorporated into UK law by the European Communities Act 1972. Perhaps the most important provisions are set out in section 2 and 3. The effect of section 2 is that European law must be considered to be a valid and binding source of UK law. Where European law exists on a particular subject (at least if set out in the Treaties or in Regulations), it can override any inconsistent UK law, including Acts of Parliament. In this sense the doctrine of parliamentary sovereignty is compromised. This is best illustrated by the case of the Spanish fishing vessels the Factortame cases (Factortame v Sec. Of State for Transport (No.1) [1989] 2 W.L.R. 997 (HL); 1990 The Times 20 June (E.C.J.); (No.2) [1990] 3 W.L.R.818 (HL); [1991] 3 All E.R. 769.
After the recognition in this case that UK law had breached European law and the latter must prevail, English law was formally changed by statute.
The effect of the Human Rights Act will have in practice in the UK depends on how far courts and tribunals are willing to go in the same direction, and to create new rights out of the dated Convention. And that in turn depends upon the public and practitioners coming to grips with the requirements of the Act and the opportunities it offers for new approaches to the redress of grievances.
The Act itself does not confer any immediate remedy for injustice. What is does is create legal standing for the Articles of the European Convention on Human Rights in UK law. That means the legality of any action by a public body must always be considered against the objectives of the Convention before that action is taken.
There is no doubt that the Articles of the Convention could provide a means of rectifying the erosion of civil rights over the past 20 years. In particular, Article 5 provides for a right to liberty and security except where you are lawfully arrested. This could strengthen the existing procedure for proving unlawful arrest and getting compensation (a right under article 5(5)). For example where you are not properly informed of your reasons for arrest (Article 5(2)), or they delay in bringing you to trial or post excessively long police bail because of the tenuous reasons for your arrest (Article 5(4)) then you could seek redress.
In Brogan and Others v United Kingdom (1988) 11 EHRR 117 and De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373, the European court considered that Article 5 enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with their right to liberty (Nash & Furse, p.12,1999).
The main provision is Article 6, this creates the right to a fair trail. However, how would this system work if because of lack of money or because of restrictions to legal aid, individuals were not capable of action in the High Court? It is suggested that in many instances local authority officers are prepared to break the rules because they know full well that the person concerned has no possibility of seeking redress through the high court because of their financial circumstances. For certain people therefore, the abuse of process may also be the inability to seek redress through the courts.
A number of factors have been identified which are implicit in the notion of fair hearing, including the privilege against self-incrimination, equality of arms between parties, the opportunity to cross-examine witnesses and the right of the accused in criminal cases to be present at the hearing. In Dombo Beheer BV v The Netherlands (1993) 18 EHRR 213, the Court held that the concept of equality of arms implies that each party must be afforded a reasonable opportunity to present his case, including evidence. The operation of the rules of evidence may cause unfairness and in Edwards v United Kingdom (1992) 15 EHRR 417, the Court held that a failure by the prosecution to disclose relevant evidence would render the trial unfair (Nash & Furse, p.14,1999).
It is clear that the HRA 1998 has had a significant impact on the law of the United Kingdom (Stone, 2002). The existence of a clear and agreed statement of rights, Stone argues will encourage a different way of thinking about issues, both inside and outside Parliament and in the courts.
Parliament, for example would be more likely to consider the rights implication on new legislation, the Press and other commentators will tend to measure the law, and actions of parliament, the executive and the judiciary against the standard set by the Act. The Courts, Stone argues further, will pay attention to the Act when developing and interpreting the law. Thus, the beneficial developments operate at an informal level, changing attitudes and expectations (Stone, 2002).
Public authorities need to act in a way that positively reinforces the principles of the Human Rights Act. The Human Rights Act underpins this by making it unlawful for a public authority to act (or fail to act) in a way, which is incompatible with a convention right. This covers: drafting rules and regulations, internal staff and personnel issues, administrative issues, decision making, policy making, policy implementation and interaction with the public.
What this mean in practice is that individuals who feel that their rights have been infringed should have a means of redress provided by the Act. They will be able to enforce their rights in the courts, or whatever other tribunal is established to adjudicate on issues arising under the Act (Stone, p. 528). Thus, people who wish to being cases where they believe their rights have been violated, will now be able to do so through the British courts rather than having to spend years pursuing the case at the European court of Human Rights.
As far as Parliament is concerned, it clearly has not stopped Parliament from enacting laws that extend restrictions on freedom (for example, the Criminal Justice and Police Act 2001 and The Anti-Terrorism Crime and Security Act 2001) (Stone, p.528).
The HRA 1998 impact on the judiciary daily practice will depend upon how far the courts of this country are willing to take a ‘public interest’ view of administrative decision-making. It will no longer be enough to ask whether the decision-making has taken into account all material considerations and not acted unreasonably in the sense of going beyond the powers conferred by the statute concerned.
Stone argues that although English judges are used to dealing with narrowly specific issues raised by particular cases, the courts have, however, shown a willingness to take on board the new demands made by the Act on our legal system, and in particular the development of judicial review. There are times when they appear unduly defensive of the common law, arguing that the rights alleged would have been protected even in the absence of the HRA 1998 (for example, Lord Bingham in R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26, [2001] 3All ER 433) (Stone, 2002).
It is suggested that overall the HRA 1998 appears to be having a significant and positive effect on the development of civil liberties in the United Kingdom. Stone argues that there is still much to criticise. For example, new powers are still being given to the police to deal with suspects, with little by way of balancing of the rights of the individual. Freedom of speech is still the subject of controls, which may be regarded as excessive in relation to official secrets Acts. The freedom to engage in public protest operates within a framework, which is the subject of close supervision by the police. Extradition has become difficult to challenge, and deportation orders and asylum claims operates with unsatisfactory appeal procedures (Stone, pp. 529-530).
II
By Article 1 of the Convention, countries who have signed up to the convention must secure the said rights for everyone in their jurisdiction and individuals must also have an effective remedy to protect those rights in the country’s court without the need to go to the European Court of Human Rights.
In agreement with David Feldman, the HRA 1998 has started to produce the benefits that would be hoped would eventually form a Bill of Rights, but there is still substantial room for improvement. Stone argues that we live in a society that is less free that it needs to be and where the trend in recent years has been for parliament to subject existing freedoms to further restrictions.
Bibliography
David Feldman. ‘Civil Liberties and Human Rights in England and Wales’ (2nd edition) 2002, Oxford University Press.
Richard Stone. Textbook Civil Liberties and Human Rights (4th edition) 2002, Oxford University Press.
Susan Nash and Mark Furse. Essential Human Rights Cases. (1999) Jordan Publishing Limited.
Hilaire Barnett. Constitutional & Administrative Law (4th edition) 2002 Cavendish Publishing Limited.
Walker & Walker. English Legal System (7th edition) 1994 Butterworths.
