Application of Global Human Right Laws

Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of Governments. [1] The idea that only states have the responsibility to comply with global human right law is true to a certain extent. In considering this argument it is important to look at the coming about of global human rights law. This paper will also comment on the role of the judiciary in the UK in the application of these global human right laws.

Human Rights are said to be universal and inalienable rights, which is said to form the cornerstone of international human rights. [2] These rights and freedoms have not always existed or been recognised around the world as they are today. The idea of rights for human kind began with great philosophers of the seventeenth century such as Hobbes who saw natural rights as those based on the universal human interests of gain and self-protection. [3] It was on this foundation that his successors based their theories, notably Locke who thought that there were certain basic rights given to man by God, which he felt was the state’s duty to protect. [4] Locke also claimed that the sovereign power was limited and that the people had the right to resort to revolution against the sovereign if power was abused. [5] Paine agreed with Locke’s view and also saw the difference between natural rights as those that every man has and civil rights as those that appertains to man in right of his being a member of society. [6] All this was during the time when African slaves were legally classified as chattels, [7] the development of law in that area with the Somerset case [8] and at the same time the French and American revolutions came about. [9]

The world the saw two wars, due to the horrible human atrocities during WWII came the Nuremburg trials in 1945, the international community became convinced of the real pressing need to protect and promote global human rights. [10] The United Nations was formed from the League of Nations [11] and membership was open to states from any part of the world. The first step for the UN was the body of international human rights the Universal Declaration of Human Rights in 1948 [12] and two other treaties in the 1960s, International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, [13] to create the International Bill if Human Rights [14] which meant that there were civil, Political and social right for all man. [15] From this legally binding regional conventions were drafted, the American Convection of Human Rights 1969 and the African Charter of 1987, [16] and notably European Convention on Human Rights 1950 (ECHR) [17] , which was ratified by United Kingdom in 1951. [18]

The Vienna Declaration [19] places the primary duty to promote and protect human rights on the state, which includes state run departments. In the UK for any law to be recognised by the courts it has to be enacted by statute, this is due to the sovereignty of parliament in. [20] The ECHR in the UK was not directly applicable by the courts and individuals could not enforce their global human rights as seen in Malone v Metropolitan Police Commissioner. [21] The convention also gave member states a margin of appreciation which was discussed in Handyside v UK. [22] In recent years, international human rights discourse has changed, where some states in the international community were promoting human rights, while others violated them, [23] the state reporting system has helped make a change, in a system of naming and shaming. [24] Many states are reluctant to be identified as the bad example on the international arena. [25] Individuals within the state have to comply with human rights, they have the right to petition their governments if these rights are violated, O’Donoghue and others v UK [26] on the violation of Article 12 ECHR. Individuals can also enforce their rights when they are violated by other individuals, Campbell v MGN [27] this was on the rights under article 8.

A number of other bodies and organisations some of which are part of the UN contribute to the enforcement of human rights. [28] These include the UNHCR for the protection of refugees around the world, UNICEF which strives to help children receive the care they need in early life and protecting from death and ill-treatment and UNESCO, which contribute to peace and security by promoting collaboration among nations. [29] There are others like the WHO, which promotes health for all and also the Red Cross which promotes and protects respect for all humans. [30] There are also other non-governmental Organisation (NGOs) and other non-state actors, these work alongside the state in protecting and bringing forward individual complaints on any human rights violations. [31]

The ECHR was incorporated into English law by the Human Rights Act 1998 (HRA), [32] before the UK had restricted its incorporation on the bases that the common law provided equivalent protection. [33] Before the HRA global human rights were unenforceable in the UK as seen in Malone case [34] and also in Silver v UK [35] where it was noted that there no effective national remedy. This lead to findings of violations in Strasbourg which also led to changes in the UK, Sunday Times v UK [36] which led to the Contempt of Court Act 1981 [37] and also Malone v United Kingdom [38] which led to Interception of Communications Act 1985. [39] The direct judicial application of global human rights in UK law had been very limited before the (HRA) which saw a lot of cases end up going to the ECtHR which was very costly on the individuals involved and took a lot of time. Since the 1998 Act, the main articles of the ECHR are directly enforceable in UK law through the domestic courts. [40]

The act provide protective measures, [41] the requirement for legislation to be read and given effect which is compatible with convention right, s. 3. [42] It makes it unlawful for a public body to act incompatibly with convention rights s. 6, also it gives court the power to make declarations of incompatibility under s. 4, but the Act does not give the domestic courts the power to quash primary legislation, even when it is found to be incompatible. [43] The main provisions of the act that are taken from the main articles are, s. 1 which defines the ECHR fundamental freedoms and relates to Article 2, the right to life. [44] In re McKerr, [45] this looked at the distinction between the ECHR and HRA and stated the fact that there is no retroactivity of the Act. This related to Article 2, Mr McKerr was killed in 1982 and his son brought the action. Lord Nicholls stated that the two sets of rights existed side by side, but that there are significant differences between them, that ECHR rights are not part of domestic law and HRA are and subject to domestic judicial interpretation. [46] Section 2 of the HRA states that the courts must take into account any prior decisions of the ECtHR were the decision is relevant to the questions before the court, court have differed in their interpretations of the obligation to take into account. In R (on the application of Alconbury Ltd) v Secretary of State for the Environment, [47] judges had to interpret s.2 HRA. Lord Slynn stated that, “In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the ECtHR,” to do otherwise would result in the case going up to the ECtHR. Lord Hoffmann also confirmed that ECtHR cases are merely persuasive, “The House of Lords is not bound by the decisions of the European Court and, if I thought that the Divisional Court was right to hold that they compelled a conclusion fundamentally at odds with the distribution of power under the British constitution, I would have considerable doubt as to whether they should be followed.” In another HOL case Kay v Lambeth [48] the court confirmed that the Act does not change the rules of precedent in the domestic courts. Where the Court of Appeal found the decision of the HOL in conflict with ECtHR the court should follow the domestic precedent the give leave for appeal to the HOL.

On the interpretation of legislation, s. 3 that they should be given their full effect compatible with convention rights. Section 3 has proved to be the most important provision of the Act and it has led to some high profile and difficult decisions for judges. It pushes the judges to interpret the wording of legislation rather than declaring it incompatible under s. 4. In R v A [49] which concerned the admissibility of evidence of rape complainants and the interpretation of s. 41, Youth Justice and Criminal Evidence Act 1999. [50] The court stated that courts should us the powers given under s. 3 HRA to interpret s. 41 YJCEA 1999 and that the result would be to allow previous sexual criminal history whenever it will also allow for a fair trial under Article 6 ECHR and avoid a declaration of incompatibility. It could also be argued that if there is a clear conflict then a declaration of incompatibility should be issued, the intention of parliament should be taken into account. The scope and the use of court’s powers under s.3 and the interpretation of s. 11 Matrimonial Causes Act 1973, [51] was considered in Bellinger v Bellinger. [52] This was case where a transsexual woman who had gotten married to a man wanted that marriage to be recognised, the court could not interpreter the clause to include anyone who had undergone a gender reassignment surgery. A declaration of incompatibility was issued and parliament passed the Gender Recognition Act 2004. [53]

The responsibility to comply with international human rights law is primarily on the state but as seen there are non-governmental organisations, United Nations bodies and also individuals that all have to comply with the international laws. The Human Rights Act 1998 in the UK has helped bring these Global human rights closer to home for the citizens and it has brought the judicial interpretation of these rights into unchartered waters, [54] and the judges still seem to be working these out and incorporating them into UK law.

Bibliography for Question 1

Textbooks

Alder, J. (2005). Constitutional and Administrative Law. 5th ed. New York: Palgrave Macmillan

Barnett, H. (2010). Constitutional & Administrative Law. 8th ed. London: Routledge

Bradley, A W & Ewing, K D. (2011). Constitutional & Administrative Law. 15th Ed. Harlow: Pearson

Davis, H. (2007). Human rights law Directions. Oxford: oxford University Press

Smith, R. K. M. (2010). Textbook On International Human Rights. 4th ed. Oxford: Oxford University Press. Page 6

Journals

Brasted, Charles & Rayner, Cordelia. (2011) Unchart(er)ed Waters. New Law Journal. 21 January 2011. Pp. 89-90

Bobb-Semple, Colin. (2006-7). English Common Law, Slavery, and Human Right. Tex. Wesleyan Law Review, vol. 13, issue.1, pp 659-684

Skogly, Sigrun I. (2009). Global Responsibility for Human Rights. Oxford Journal of Legal Studies, Vol 29, No 4, pp. 827-847

Online

United Nations Human Rights: Office of the High Commissioner for Human Rights. (1996-2011). What are human rights? [Online]. Available at: http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx [Accessed 20/04/2011]

Cases

Bellinger v Bellinger [2003] 2 AC 467, HL

Campbell v MGN [2004] 2 AC 457

Handyside v UK [1979] 1 EHRR 737 ECtHR

Kay v Lambeth [2006] UKHL 10

Malone v Metropolitan Police Commissioner (No2) [1979] Ch 344

Malone v United Kingdom (1984) 7 EHRR 14

O’Donoghue and others v UK [2010] ECHR 34848/07, [2011] All ER (D) 46

R v A [2002] AC 45, HL

R (on the application of Alconbury Ltd) v Secretary of State for the Environment [2001] UKHL 23

re McKerr [2004] 1 WLR 807, HL

Silver v UK Series A No 61 (1983) 5 EHRR 347

Somerset v Stewart (1772), 98 Eng. Rep. 499 (KB)

Sunday Times v UK (No1) [1980] 2 EHHR 245

Statutes

African Charter of 1987

American Convection of Human Rights 1969

Contempt of Court Act 1981

European Convention on Human Rights 1950

Gender Recognition Act 2004

Human Rights Act 1998

Interception of Communications Act 1985

International Covenant on Civil and Political Rights 1966

International Covenant on Economic, Social and Cultural Rights 1966

Matrimonial Causes Act 1973

The Vienne Declaration and Programme of Action 1993

Universal Declaration of Human Rights in 1948

Youth Justice and Criminal Evidence Act 1999

Question 2

The Human Rights Act 1998 [55] has effectively brought the Convention rights to the domestic courts in the UK. [56] What the Act has not been able to do is give the Judiciary absolute interpretative freedom of legislation, this is due to parliament and its relationship with the judiciary in the UK constitution. [57]

The Convention incorporation by the HRA was done amid many criticisms mainly that it was not tailored specifically for British conditions, that the judiciary was ill equipped to assume the responsibility to guardian individual rights in the face of Parliamentary Sovereignty. [58] Sovereignty means either the supreme legal authority within a state or supreme political authority. [59] The idea that citizens enter into a contract with the state surrendering to the state individual rights for the protection of the state through a vote means the elected parliament has the power of the people and can make laws that should not be questioned by any unelected body, [60] including courts as seen in Pickin v British Railway Board. [61] This means unlike the United States, no court including the Supreme Court, can strike down any legislation passed by parliament. [62] The HRA cannot be given special or higher status than the Acts of Parliament. [63]

Section 4 of the Act gives the courts the power to issue a declaration of incompatibility when it is determined by the court that a statutory provision is incompatible with the Convention rights, [64] but not to question or strike it down. The relationship between ss.3 and 4 is that section 3 imposed a duty on the courts to interpret legislation and s. 4 only gives them a power which is limited and should only be used as a last resort as stated in R v A. [65] The aim of section 4 is to preserve Parliamentary Sovereignty and that courts cannot overrule primary legislation, the can only issue a declaration of incompatibility. [66] In exercising its rights under s. 3 the court has to always consider the intentions of parliament, Ghaidan v Mendoza, [67] in interpreting the word ‘spouse’ in the Rent Act 1977 to include same sex partner and ‘living together as man and wife’ to mean ‘living as man and wife.’ Lord Millett, thought it should be left to parliament to change the law in this manner it was clearly not a statute intended for same sex partnerships. [68] However in R (Hooper) v Secretary of State for Work and Pension [69] in relation to Article 14 of the Convention rights, [70] the Court could not use s.3 in order to interpret ‘widows’ to also mean ‘widowers’, in this case s.4 was used. [71] This means that we have One of the slightly bizarre features of our legal system is that we have a supreme court, populated by our most senior and respected judges, which can no more tell our parliament what to do than it can decide the tactics for the England football team. [72] It brings a lot of confusion when the courts are expected take into consideration the judgments of the European Court of Human Rights, when considering Convention rights, Section 2 of the Act places that requirement. [73] This is the issue in Smith v Scott [74] on the right to vote for prisoner which the Strasbourg court had said yes must give rights to vote, but the UK parliament has voted against this and it totally undermines the rule of law of Supremacy, which will only cause more trouble for the UK government in the near future. [75]

Unlike the decisions of the European Court of Justice, the decisions of the Strasbourg court are not are not binding but only persuasive and should be used as a guide, which would have allowed judges a wider scope for interpretation. [76] It also does not help convince politician that these decisions are worth following if some of the country’s top judges refuse to follow the rulings and even say some of them are wrong, [77] Lord Bingham related to this in R (Ullah) v Special Adjudicator. [78] Before the HRA judges still had to make decisions on area of social and political controversy, [79] this includes excluding Sinn Fein politicians from media appearances R v Secretary of State for the Home Department, Ex p Brind [80] but allow actors to stand in and also determine turning off the life support machine of one of the Hillsborough stadium collapse victims [81] in Airedale NHS Trust v Bland. [82]

The speech by Lord Chief Justice Lord Wool in 2003 goes some way in responding to the criticisms of the judiciary, “Judges are only doing what they have to swear to do on appointment and that is to give a judgement according to law. The law now includes the HRA. By upholding the HRA the courts are not interfering with the will of Parliament. On the contrary, when they interfere, the judges are protecting the public by ensuring that the Government complies with the laws made by Parliament. The courts are therefore acting in support of Parliament and not otherwise.” [83] This shows how the judicial is bound by Parliamentary Sovereignty and how limited the interpretative powers of the judiciary are in the UK with regards Human Rights Act 1998.

The Human Rights Act 1998, Sections 6 and 7 are important in enforcing Convention rights as they make it unlawful for any public authority which also includes courts and tribunals to act incompatibly with Convention rights, [84] unless if they are acting in accordance with the primary legislation, [85] this definition includes those bodies whose functions are partly public in nature. [86] This introduces a new ground for Judicial Review, [87] changing the view on Locus Standi or Standing.

Judicial review is a legal procedure, to the High Court, [88] allowing individuals or groups to challenge in court the way that Ministers, government departments, local authority, tribunals, state agencies and other public bodies that make decisions. [89] The decision must have been made by a public body not a private one, R v Disciplinary Committee of the Jockey Club, Ex parte Aga Khan. [90] The decision has to be made over and above the authority of the public body and this is known as Ultra Vires and the ground for establishing it were looked at in Council for Civil Services Unions v Minister of State for Civil Services. [91] Lord Diplock said there were three grounds for JR illegality, Attorney General v Fulham, [92] irrationality as seen in Associated Provincial Picture Houses v Wednesbury [93] and procedural impropriety as established by Agricultural, Horticultural and Forestry Industry Training Board v Ayleysbury Mushrooms. [94]

Locus standi, the applicant must show that he has sufficient interest in the matter to which the application relates. [95] Before the HRA, in order to avoid those that do not have any interest in the matter on application, the court has come up with a two stage approach to establish locus standi. [96] In R v Inland Revenue Commissioners, ex p National Federation of Self Employed and Small Businesses, [97] first at the application level locus standi must be shown and second at the hearing itself, this approach applied to both individuals and groups. The addition of pressure and interest groups has been welcomed by the courts this is seen in R v HM Inspectorate of Pollution, ex parte Greenpeace, [98] case allowed. This meant that a claim could be brought only if that group has a direct interest, if there is a wider point of public interest to be decided on the action, a case that lacked this interest is R v Secretary of State for The Environment, ex parte Rose Theatre Trust [