Have the Courts Helped the Human Rights Act?

When introducing the Human Rights Bill, former Home Secretary Jack Straw stated that, “Parliament and the judiciary must engage in a serious dialogue about the operation and development of the rights in the Bill… this dialogue is the only way in which we can ensure the legislation is a living development that assists our citizens.” [1] Inevitably, ten years on, views regarding the effective employment of the Act’s initial objectives are diverse [2]. The issue breeding the heaviest body of criticism is that of the judicial role in operating the Act. This is most notably a result of its extensive interpretative power afforded by way of section 3, the seemingly burdensome effects of engaging section 4 as well as the ambiguity of section 6 . The courts meanwhile, strive to uphold Parliamentary sovereignty as well as pacify the ECHR objectives, a dangerous balancing act. Three principal objectives form the legislative framework of the HRA [3] . Firstly, to “bring rights home”, providing citizens with a means to assert their Convention Rights at a national level [4] . Secondly, to shape a “culture of human rights” within society [5] . Thirdly, to protect and remedy rights violated by abuse of public power. Despite the HRA being initially intended as a crux for judicial ruling, the legal sphere was slow in applying the Act. In 2003 the Audit Commission concluded the Act to have “not left the desk of the lawyers” [6] , conditions hardly conducive to the cultivation of a human rights culture [7] .

From the outset, there was political concern for the integrity of Parliamentary sovereignty in how the Act ‘politicised judges’ [8] . Judicial and academic circles alike, questioned whether “unelected courts should have the final say in determining what the law should be in a democracy.” [9] On the one hand, there is fierce scrutiny of the HRA’s excessive imposition of power on the judiciary, blurring the line between ‘interpretation’ and ‘legislation’ [10] . On the other, the Act does not afford enough protection to rights due to the legislative ‘margin of appreciation’ afforded to Member States, leading to unfavourable results particularly in relation to Articles 10 [11] and 15 [12] . Liberty remind us that, “one of the cornerstones of our democratic system is an independent judiciary… and the powers given by the HRA to the courts fall squarely within this historic function.” [13] John Locke’s ‘social contract’ theory justifies the power of the court to uphold individual’s rights even in the face of legislative conflict with Parliament [14] . Lord Steyn gives a dutiful nod to the judicial role when he said that with “complaisance by the judiciary to the views of the legislature…one of the pillars of our democracy will have been weakened.” [15] In summation, despite the HRA recognising the importance of Parliamentary sovereignty, it is clear that the government’s hesitance to impart judicial interpretative power is having a detrimental effect on exercising the Act with the courage and conviction that it demands.

Section 3

The source of the criticism stems from four principal sections of the HRA. Section 3 commands the interpretative obligation, dictating that primary and subordinate legislation must “be read and given effect in a way which is compatible with Convention rights… so far as it is possible to do so”. [16] Where it is not possible to do so, the higher court may issue a “declaration of incompatibility” under s.4(2) of the HRA. As Lord Woolf predicted in Popular, [17] the dividing line between interpreting and legislating would not be easily defined under the HRA.

In R. v. A. [18] two distinct lines of reasoning surfaced in relation to the predictably troublesome duty to effect rights “so far as possible”; a ‘radical’ and ‘cautious’ approach. The court’s use of s3(1) in R. v. A is an example of where the judges ventured out of their depth. The defence argued the Article 6 right to a fair trial had been violated in that he was unable to submit information regarding the victim’s sexual history [19] . Lord Steyn agreed and his “radical approach” read-into s.3 an exception complying with Convention rights, although by any natural standards, exceptions cannot be ‘read-in’, they are written-in [20] . It could just as easily be argued that the victim’s Article 6 right would also be engaged as sexual history deemed ‘relevant’ at the court’s discretion could impugn the credibility of the witness [21] . The controversial outcome of this case produced an onslaught of bad press [22] for ‘turning the will of parliament on its head’ [23] , slamming it’s detrimental effect on rape conviction rates. 2004 saw the lowest conviction rate in rape cases on record, 5.3% [24] . Whats more, 34% of the public thought that a woman was partially or totally responsible for the rape if she was behaving in a ‘flirtatious’ manner [25] . How can a court be said to have correctly interpreted the HRA when the justice gap is widened, deterring victims further from reporting rape and undoing the rectification provided by s.41(1) of the YJCEA [26] ? Despite Kavanagh’s argument that the criticism stems from the outcome of the case as opposed to the application of s3(1) [27] , it is for this precise reason that the decision should be questioned. If the court can manipulate the section in such a way as to have such an extreme effect on legislation, without technically infringing provisions of the Act, that in itself is an abuse of the HRA.

In contrast, Lord Hope took a “cautious approach” suggesting a declaration of incompatibility was more suitable than ‘reading-in’ legislation, surely a more appropriate channel given the objectives of the Act and accounting for Parliamentary sovereignty. However agreeable Lord Hope’s reasoning, he did not oppose the ruling. Kate Allen of Amnesty International remarked that “The government has an international duty to prevent this gross human rights violation yet it’s clear that the government’s policies on tackling rape are failing and failing badly.” [28] It is clear that how the courts interpret domestic law in line with Convention rights will be closely monitored. Academics [29] have suggested, accountability should be held by “exposing decisions to public scrutiny”, to strengthen democracy [30] . The interpretative power afforded by s.3 bears a heavy burden, one that has time and time again produced unsatisfactory results.

Clayton submitted that the principles directing the application of s.3(1) are “now well established” [31] as a result of cases such as R. v. A, Re S [32] and Ghaidan v. Goden-Mendoza [33] . Although Kavanagh’s modest view that the section is not free from ambiguity [34] is far more convincing. Lord Steyn suggested a ‘purposive’ approach that focused on “the importance of the fundamental right involved” [35] , a backtrack from his “radical” approach in R. v. A. A further diversion from R. v. A came in Anderson [36] where the logic in Ghaidan was applied and a declaration of incompatibility issued, Lord Bingham said should s.3 be applied in line with the R. v. A approach, the result in the present case would not be “judicial interpretation but judicial vandalism…” [37] .

It cannot be said that the principles governing s.3 are ‘well established’ when such a broad spectrum of approaches are adopted, producing inconsistent results which can deny rather than outwardly protect human rights. Lord Steyn raises the question whether “the law has taken a wrong turning?” [38] , despite being asked in a different context [39] , perhaps it is more suitably asked in this context; that as the current exercise of s.3 stands, it produces disparity in results and myriad conflicting obiter. It is evident that Lord Irvine’s original statement that declarations of incompatibility would be “rare” [40] sat deeply in Parliament, reducing it to a “measure of last resort” [41] . As Klug and Starmer note, neither s.3 nor s.4 would be regularly employed as a result [42] . Despite Lord Irvine rowing back, stating that an approach that would “yield virtually no declarations of incompatibility… would be wrong” [43] , it is undeniable that the courts are hesitant to issue declarations of incompatibility.

Section 4

Courts are cautious of s.4 under the mistaken presumption that in issuing a declaration of incompatibility, Parliament is effectively forced to amend the law [44] .The ‘dialogue model’ [45] of the HRA demands confidence from the court to declare an incompatibility where the appropriate execution of s.3 is “not possible”, irrespective of the nature of the legislation [46] . Lord Hope offered clarification in Shayler [47] ; that declarations of incompatibility should be issued where “compatibility cannot be achieved without overruling decisions …or if to do so would make the statute unintelligible or unworkable” and “decisions… to amend the offending legislation, are left to Parliament.” [48] In some cases, the ‘extremity’ of engaging s.4 has surpassed mere hesitance to issue a declaration of incompatibility and courts have altogether refused to give a ruling. Instead of addressing this unacceptable approach by clarifying when and how s.4 should be used, the opaque concept of ‘judicial deference’ was conjured by the courts themselves [49] . The scheme is a legislative half-way house for judges uneasy with operating ss.3 and 4. The line between judicial deference and the scope of s.3 rests on ambiguous criteria such as the “culture and conditions of the British State” [50] . For the courts to abstain from ruling on certain subjects will jeopardise fundamental rights [51] . Klug asserts that if ss.3 and 4 are correctly applied and the ECHR doctrines of legality, necessity and proportionality are considered, there is no need for judicial deference [52] . It seems ironic that the courts should apply s.3 powers with such benevolence while showing reluctance towards operating s.4, this places excessive strain on s.3 and in turn produces results that undermine Parliament.

Section 6

S.6 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right [53] . With particular reference to what should be considered a ‘hybrid’ public authority [54] . The lack of definition for what exactly constitutes a “public authority” has forged a wide justice gap, denying human rights protection to precisely those who the HRA set out to protect. It’s meaning has produced a long and arduous trail of jurisprudence with divided opinion as to whether a wide or narrow approach is best suited. Popular [55] provided the first consideration of the meaning [56] . Lord Woolf suggested a “generous interpretation” for “public function” [57] despite subsequent obiter indicating a restrictive approach [58] . The Court of Appeal rendered the housing association a public authority as a result of its close relationship with the local authority, the reasoning behind the ruling however, implied stringent terms for such a relationship to give rise to a hybrid public authority [59]

Conversely Aston Cantlow [60] , placed relevance on the extent of public funding, whether the body in question was taking the place of a public body and whether a public service was being provided, as indicators of a public authority [61] . However, the controversial decision in Leonard-Cheshire [62] reverted to a narrow approach whereby core public bodies then delegated functions to the private sector, thus escaping HRA obligations. The decision was reprimanded for not only overturning the decision in Aston Cantlow but for also being inconsistent with the will of Parliament when it enacted the HRA. A primary objective of the Act was to give redress to individuals whose rights were affected by the State. The Joint Committee on Human Rights said that “a central provision of the Act has been compromised in a way which reduces the protection it was intended to give to people at some of the most vulnerable moments in their lives” [63] . The more recent decision in YL [64] came to the same conclusion as Leonard Cheshire. The House of Lords ruled that a private care home would not constitute a hybrid public authority under s.6(3)(b) where it was operating for-profit and pursuant to a contract with the local authority. Baroness Hale and Lord Bingham support a “generously wide scope” [65] , a favourable approach that clearly accounts for the HRA objectives. Lord Bingham submitted the exact purpose of this section was to encompass liability of private bodies that take over services formerly carried out by a public agency. [66]

What considerations are relevant in the determination of a “public function”? [67] Lord Neuberger submits that, “it is surely contrary to principle that residents in local authority care homes have the protection of the HRA, but all residents of a home where the care is subcontracted, including publicly funded residents placed in private homes, do not” [68] . The decision also conflicts with the stance adopted by the ECtHR when it said that “the State cannot absolve itself from responsibility… by delegating its obligations to private bodies or individuals” [69] . A culture of human rights cannot possibly flourish given the current judicial stance. Who the court sees deserving of protection under the HRA at present, does not correlate with the initial demographic of the Act. To absolve private institutions of human rights liability does not enhance our international image, let alone provide redress for the vulnerable masses who are denied protection. Although Quane is careful to remind us of potential problems in excessive application of the Act [70] , it is clearly relevant in the present case as the justice gap potentially allows unacceptable abuses of power [71] . “As members of a democratic society, individuals should be given the opportunity to be treated as citizens and not consumers”. [72]

Section 2

S.2 requires domestic courts to “take into account” Strasbourg jurisprudence [73] . It has become apparent that courts do not extend rights beyond those afforded by the ECHR, rendering Convention rights the “ceiling” rather than the “floor” for rights in the UK [74] . Lord Hoffman said, “the Act did not transmute international law obligations into domestic ones. It created new domestic rights” [75] .This turns the notion that the HRA incorporates the ECHR rights into English law on its head [76] . Lord Bingham in Ullah [77] said that the court’s duty was to keep pace with Strasbourg, no more, no less [78] . He stated that it was incumbent upon Member States “to provide for rights more generous than those guaranteed by the convention” [79] however, this has since been abaited [80] . In light of the ‘margin of appreciation’ afforded to Member States, the principles developed by the ECtHR should be what are “taken into account”. Given Strasbourg’s extensive jurisprudence, it comes as no surprise that the English courts often bypass the fitting authority in pursuit of more favourable precedence. It is of course, by reading into the desired Strasbourg case law, picking and choosing authority that the courts not only undermine the ECHR, but also render the HRA unworkable. The ECHR was not intended to form the “ceiling” of our rights, but the foundation, with Strasbourg providing the tools with which to build legislation and Parliament left to its construction.

The HRA has resulted in some positive legislation ironing out incompatibilities in domestic law and prompting fast-track amendment [81] . Arguably, this has been at the expense of the correct employment of ss.3 and 4. The Act should be commended for change in legislation regarding terrorism [82] as well as improving the decision-making process of s.10 CCA [83] . However, the general reluctance of Ministers to defend the Act is disappointing [84] , in turn effecting how courts perceive their duties. It has been suggested by the Conservative Party that a Bill of Rights should replace the Human Rights Act, despite representatives from JUSTICE deeming the Act to be Labour’s greatest achievement [85] and praising the legislation [86] . Dominic Grieve contended that if we are to “live in a rights based society, there needs to be greater public ownership of rights”. Jonathan Fisher criticised the Act for creating “rights without responsibilities” [87] . Could the HRA impose too heavy a burden on the court? While it is true that Parliamentary sovereignty is a respected cornerstone in domestic legislation, an independent judiciary is indicative of democratic society and essential in the efficient operation of the HRA. In failing to operating s.4 of the HRA with enough conviction, courts have resorted to legislation instead of interpretation. Gearty submits, “the deep end is for elected representatives: the people not the judges are their life-guards” [88] .

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