What effect has the Human Rights Act 1998 had on the law of England and Wales?
What effect has the Human Rights Act 1998 had on the law of England and Wales?
Discuss:
Pre-existing protection for human rights/civil liberties
Pre HRA effect of the ECHR
Key effects of the HRA:
- interpretative duty
- declarations of incompatibility
- remedial orders
- prohibition of incompatible acts by a public authority
- application in private disputes
Critique:
- preservation of parliamentary sovereignty
- does not incorporate Article 13
Possible answer
The HRA 1998 came into force on 2 October 2000 and made it possible to enforce the European Convention on Human Rights in British courts. In Wales the Government of Wales Act 1998 introduced Convention rights a little earlier, in July 1999, since the GOWA included a provision prohibiting the National Assembly for Wales from acting incompatibly with the ECHR. A similar provision was contained in the Scotland Act in relation to the Scottish Parliament and the Scottish Executive.
Prior to the commencement of the HRA 1998, the UK was bound by virtue of its obligations under the ECHR to ensure respect for the rights and fundamental freedoms set out in the Convention. Under the Convention itself it was possible (and, post-HRA, it remains possible) for an individual claiming to be a victim of a violation of his or her Convention rights to take a case to the European Court of Human Rights in Strasbourg and for that Court to hold the UK accountable for any proven breach, including by requiring compensation to be paid. However, before taking such a case, a person had first to exhaust available domestic remedies and thereafter the route to the ECtHR in Strasbourg was notoriously slow and expensive.
The law of England and Wales did however provide a number of safeguards for human rights (though not described as such). A.V. Dicey identified a tradition of civil liberties, as part of the doctrine of the rule of law, as a fundamental cornerstone of the British constitution, exemplified in classic cases such as Entick v Carrington (1765). The basic proposition was that an individual is free to do anything that s/he is not by law prohibited from doing, and that s/he is entitled to freedom from interference by government unless such interference is authorised by law. This tradition ...
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The law of England and Wales did however provide a number of safeguards for human rights (though not described as such). A.V. Dicey identified a tradition of civil liberties, as part of the doctrine of the rule of law, as a fundamental cornerstone of the British constitution, exemplified in classic cases such as Entick v Carrington (1765). The basic proposition was that an individual is free to do anything that s/he is not by law prohibited from doing, and that s/he is entitled to freedom from interference by government unless such interference is authorised by law. This tradition had an important influence on the original negotiation and drafting of the ECHR, so that when in 1997 the Labour Government introduced its plans for the HRA, it was able to state that it was 'Bringing Rights Home'. The description was not wholly accurate, however, because part of the reason for introducing the HRA was that case law had shown that the protection of civil liberties under UK law did not always meet the modern criteria of the ECHR: for example, in the telephone tapping case of Malone v Metropolitan Police Commissioner (1979).
Before the HRA, the courts in England and Wales would apply an established principle of statutory interpretation to strive to find a construction which was compatible with Convention rights, where any ambiguity existed: R v Home Secretary ex parte Brind (1991). They would also seek to develop the common law in a manner compatible with Convention rights: Raymond v Honey (1983). The HRA 1998 goes further than this, and impacts on decision making by the courts in three ways:
- in determining a question about Convention rights they must take account of Convention case law (s.2)
- they must interpret legislation so far as possible in a way which is compatible with Convention rights (s.3)
- as a 'public authority' they are obliged to act compatibly with the Convention rights (s.6).
An example of how far the courts may go in carrying out their interpretative duty under s. 3 can be seen in R v A (Complainant's sexual history) (2002), but they have stopped short of being seen to usurp the role of Parliament in law making in other cases such as Bellinger v Bellinger (2003) and Re S; Re W (2002).
If the courts cannot interpret away an incompatible provision in primary legislation, they can, under the HRA, make a declaration of incompatibility (s. 4). When this happens, the parties in the case are bound by the domestic law, but the declaration of incompatibility sends a message to the Government and to Parliament. The HRA provides a 'fast track' subordinate legislative procedure by which a remedial order can be made (s.10). It is important to note that this leaves the power to change the law and remove the incompatibility in the hands of the Government and Parliament, rather than the courts.
Under s. 6 of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. The Act does not wholly define 'public authority' but expressly includes the courts and expressly excludes Parliament. The exclusion of Parliament helps to ensure that parliamentary sovereignty is maintained. The inclusion of the courts is important because it has the effect that even in private law claims ECHR arguments may be introduced. The courts have, in fact, used the Convention in private disputes to develop common law remedies: a good example is the way in which they have considered Articles 8 and 10 of the ECHR in connection with the law of breach of confidence in cases such as Hello! v Douglas (2001) and Campbell v MGN (2004).
So far as other public authorities are concerned, the HRA creates a statutory right of action where a person claims to be a victim of a breach of s. 6. The action may be a claim for damages, a declaration, or for a remedy available in judicial review proceedings.
Some commentators have criticised the HRA, claiming that it has not gone far enough to protect people from breaches of their rights under the ECHR. Certainly it is 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, of striking down 'unconstitutional' legislation. Some commentators have referred to an undue 'judicial deference' to the role of Parliament, demonstrated in cases such as Bellinger v Bellinger and Re S; Re W. On the other hand many senior judges appear to approve of the demarcation that the HRA has maintained between the role of courts and Parliament:
'In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention' (Lord Hope in R v DPP ex parte Kebilene (2002))
'Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them'. (Lord Bingham in Brown v Stott (2001)).
Another criticism has been that the 'Convention rights' defined in the HRA deliberately exclude Article 13, which requires States to ensure that individuals have an effective remedy under domestic law for breach of Convention rights. The justification for this was that it was unnecessary to do so, as the HRA itself provided all such remedies as were not already available under UK law. It can be argued, however, that the preservation of parliamentary sovereignty explained above means that there will still be cases where an individual is denied an effective remedy even where his or her Convention rights have been breached. The defect, if it is one, flows from the policy decision to maintain the careful balance between the courts and Parliament. Despite the criticisms, the HRA 1998 must surely be regarded as a very positive development in the protection of human rights in the UK.
