UK is one of the original signatory of the European Conventions of Human Rights 1950(ECHR). It only came into effect in October 2000 when the Parliament passed the Human Rights Act 1998, giving effect to the main provision of the Convention rights in domestic law.
Prior to HRA 1998, Convention rights was only a persuasive authority in which the courts were not bound to give effect to Convention rights. When interpreting a provision, it would be presumed that Parliament had not intended to legislate in breach of treaty obligation.
This can be seen in the case of R v Secretary of State Home Dept exp Brind where the Hous eof Lords held that public bodies exercising discretion were not bound by ECHR terms as a precondition of acting ultra virus. The House of Lords recognised that 'to accept such a contention would amount to incorporation of ECHR via the back door.
Hence, litigants frequently had to take their cases to Strasburg for redress.
HRA 1998 is one of the most revolutionary pieces of legislation to be passed in the UK, to rank alongside the Bill of Rights, the Act of Union & the ECA. It was first introduced by the Labour Party in their manifesto of 1997 and subsequent white paper, “Bringing Rights Home’ to conclude that monumental change.
The HRA 1998 which came into effect in October 2000 finally incorporated the provisions of the Convention rights into domestic law.
Human Rights protection represents significant increase in individual rights. We cannot deny its fundamental importance. The clue to the status of Human Rights lies in the manner in which ECHR was incorporated into the UK law.
This was achieved without upsetting the delicate balance of constitutional arrangements built around the doctrine of Parliamentary Sovereignty.
In HRA 1998:
- S. 1(2) provides that in any ruling in the Convention, the court must ‘take into account’ the judgment of the European Court of Human Rights.
- S. 3 place a requirement on primary and secondary legislation to be read to give effect in a manner consistent with the Convention.
- S. 4 states that if legislation is to be incompatible with convention rights, the court is to make a declaration of incompatibility. However, it did not give the court the power to set aside an Act of Parliament which is inconsistent with Convention rights, but merely to allow certain courts to make a declaration of incompatibility which would basically serve notice to the legislators to make amendments.
-S. 6 makes it unlawful for a public authority to act in a way which is incompatible with convention rights.
- S. 7 allows a person who claims that a public authority has acted unlawfully, to bring proceedings against the authority.
- S. 19 requires a Minister to make a declaration of compatibility or otherwise, with ECHR for any legislature before the 2nd. Reading.
Essentially, while the UK had been an early signatory (1950) of the European Convention of Human Rights (ECHR), there was no means to redress in the domestic courts. Consequently, if a UK citizen believes his right had been encroached, he was forced to take action in Strasbourg. This is not to deny the existence of rights protected in English law protects the rights of individuals. (Example of existing statutory protection: Habeas Corpus, Police & Criminal Evidence Act 1984, Public Order Act 1986 (Freedom of assembly), Defamation Act 1996 (Freedom of expression).
What is found to be lacking until the enactment of HRA was a systematic Bill of Rights to be enforceable in domestic courts, which contained all the rights that an individual might enjoy under the law. Instead, UK citizen has been required to depend upon a body of statutes and the interpretation of that statute through case law.
Critics of English situation before 1998:
- In the absence of a Bill of Rights, it is difficult for the individual to know the extent of his rights and how they may be enforced.
- The level of protection afforded by the Pre-1998 regime. While action could be taken against the State, for breach of human rights, the level of those rights was often lower than the level of protection provided in the ECHR.
The HRA has strengthened the place of HR in UK on the various key aspects:
- By requiring Ministers to make a statement of compatibility (or otherwise) before the 2nd. Reading of a Bill.
- By permitting courts to declare any existing legislation to be incompatible and providing for it to be speedily amended by Order of the Council. (Note: There is no positive obligation on a Minister to amend incompatible legislation although there will be political pressure).
- The requirement under s.6 for public authorities to act in a way that is consistent with Convention rights. (Note: Breach of convention rights will be challenged under the domestic judicial review. Case ref: R. v Secretary Home Dept ex parte Daly).
HRA 1998 had been recognised as a constitutional statute. This means that it is not subjected to the process of implied repeal. If a later statute appears to conflict the HRA 1998, the court would only give effect if it is express stated in the Act. In addition, ministers presenting a Bill of Parliament is obliged to make a statement that it is Convention compliant.
The courts have been effective in implementing these Convention rights as accorded. Administrative actions that interferes with fundamental rights will no longer be able to hide behind as argument that they were not irrational.
Litigants now do not need to go to Strasbourg to argue Convention points as they can now do so in domestic courts.
Recent judicial events indicate that the judiciary are now more robust to defend and safeguard human rights by utilising s.3 HRA as a radical tool. This can be seen in the case of R v A (2001) where Lord Steyn did not declare the Youth Justice Criminal Evidence Act 1999 as incompatible (as per s. 4 HRA) but proceeded to declare s. 41 of the Act as 'too widely drafted and had made excessive inroads into the rights for a fair trial (Article 6 ECHR). Lord Steyn remarked that, as the Parliament had legislate to 'Bring Rights Home' from ECHR to UK courts, those rights could only be 'effectively brought home' if s. 3 HRA was the prime remedial measure and s. 4 is the measure of last resort.
An important point to note is that the HRA 1998 had been effective to provide better protection for individual rights because it has build an awareness of human rights that permeates all aspects of decision-making. The courts have also assumed as the guardian of human rights.
Given the extent to which the HRA has embedded rights within the English law, there can be no doubt that it is revolutionary statute. It must also be observed that there are also weaknesses in the system – the ability to pass incompatible legislation or refuse to amend such legislation by the Ministers. The HRA 1998 has not been accorded a 'special' or higher statute. Its existence and scope remains subject to the will of Parliament.
In conclusion, although the HRA does not provide any constitutional guarantee such as the Bill of Rights, it does however try to give precedence to Convention rights to the extent that it is consistent with continuing Sovereignty of Parliament.
The extent of HRA seen as entrenched Bill of Rights
In accordance with the Doctrine of Parliamentary Supremacy, Parliament cannot bind its successors. So the HRA could arguably be validly repealed.
- Lord Denning in McCarthy’s v Smith & Lord Diplock in Garland v British Rail & Engineering Ltd believes that Parliament had the power to repeal.
- HRA is probably not entrenched and considered as a Constitutional Bill of Rights.
- Political reality means that it is unlikely to be repealed.
In HRA, various provisions fall short of that provided by ECHR.:
- Crucially, Article 13, the right to an effective remedy is not incorporated (no domestic remedy).
- It is seen particularly, in a declaration of incompatibility which – while it may tend to legislative change – it is not necessary to do so. There is no express requirement on a Minister to amend legislation. At such, if primary legislation is declared incompatible, it may still remain active on the statute book.
- Article 6 provides strong protection. There is growing body of case law to show how courts are now taking proper cognizance of human rights in application of judicial review (see: R. v Ministry of Defence ex parte Smith & R. v Secretary Home Dept ex parte Daly)
The fact that courts are themselves public bodies and will therefore need to be mindful of their obligations under the HRA and ECHR when ruling on disputes.
All of these limitations are not to acknowledge that the HRA has had a profound impact of the development of domestic law. In summary, the evidence of case law is that the HRA is having an impact and by the development of precedent some of the essential freedoms and rights of the ECHR are being embedded into domestic law.