Outline the Main Provisions of the Human Rights Act 1998

The European Convention on Human Rights came into being in the aftermath of World War 2 to prevent the types of human rights violations and atrocities perpetrated during the war from reoccurring. The Human Rights Act 1998 was enacted into UK law to give further effect1 to the rights contained in the European Convention on Human Rights. It received Royal Assent on 9 November 1998, and came into effect on the 2nd of October 2000. It is said to contain six main provisions, sections 2, 3, 4, 6, 7 and 8 which I will discuss in more detail below.

Giussani has said that before the Human Rights Act 1998 the UK had an international obligation to comply with the European Convention on Human rights but she points out that it was not part of domestic law and therefore could not be relied upon to have a direct effect in the domestic courts.2

Prior to the Human Rights Act 1998 (HRA), the UKs Constitution did not contain any positive enactment of rights. Instead UK citizens had residual rights meaning they had the right to do anything not prohibited by law. The foundation for this approach was the belief that freedom was the natural and residual attribute of the citizen and should only be restricted to the extent necessary for the prevention of crime, in the public interest, or where the defence of the realm and national security were at issue.3

The enactment of the Human Rights Act 1998 made available in UK courts both a financially viable, and time effective remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. Section 2 of the Act requires that domestic courts take into account Strasbourg Jurisprudence4 although Ryan has pointed out that this section does not state that the courts have to apply such decisions.5 Giussani has stated that; In a majority of cases the obligation to take into account is construed as an obligation to follow.6 Craig has said that if a judge feels that his decision contradicts this jurisprudence he will adhere to domestic precedent but will give leave to appeal as appropriate.7 Bonner, Fenwick and Harris-Short have said that;

Section 2 is deliberately not binding: courts can depart from the ECHR jurisprudence. This reflects Strasbourgs lack of a strict system of precedent, recognizes that many of its decisions are highly particularistic, and that some turn on the states margin of appreciation, a doctrine not available as such to a domestic court, since it stems from the position of the European Court of Human Rights as an international tribunal.8

Clayton has pointed out that the prevailing practice of adherence to Strasbourg case law is not as closely followed by other countries, and also that;

The focus on Strasbourg can distract us from benefiting from the views expressed in cases from other jurisdictions when wrestling with universal human rights problems. The South African Constitutional Court, for example, has shaped its decisions by reference to the wisdom to be derived from all jurisdictions. Finally, and most importantly, the concentration on Strasbourg decisions has prevented the English Courts from developing indigenous human rights jurisprudence.9

Section 3 of the Human Rights Act 1998 has led to much discussion on the proper role of the judiciary, which at times has seemed to stray into the realm of the legislature due to the interpretive function of s3 which states that;

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights10

Loveland has pointed out that s3 of the Human Rights Act would affect areas of both civil and criminal law; he goes on to say that;

The constitutional significance of s3 depends in large part on the meaning which courts attach to the notion of possible. This is a term which might plausibly be thought to bear several meanings. Narrowly construed, s3 requires courts to reject literalist approaches to statutory interpretation if such approaches would produce results incompatible with Convention Rights……… More broadly construed, s3 might be taken as requiring courts to embrace a teleological or purposive approach to interpretation…11

According to Ryan in R v A (Complainants sexual history) [2001] UKHL 25

The House of Lords held that the interpretive obligation placed on the courts under s 3 of the Human Rights Act 1998 applied even where there was no ambiguity and the court must strive to find a possible interpretation compatible with Convention rights. Section 3 required the courts to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative evidence. Thus, this section should be read as being subject to the implied exclusion that evidence required to secure a fair trial under Art 6 of the Convention should not be inadmissible.12

Another of the more controversial sections of the Act is s4 (2) of the Human Rights Act 1998 which states that;

If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.13

It comes into play if the courts have not been able to apply their interpretive powers under s3 in a manner that has left the legislation in question compatible with convention rights. Due to Parliamentary supremacy it is not possible to strike down primary legislation nor does a declaration of incompatibility affect the continuing validity of the legislation. In R v Mental Health Tribunal14 the Court of Appeal held that within the Mental Health Act 1983, sections 72 and 73 which put the onus of proof on a patient to show that he no longer needed to be detained were incompatible with Art 5 of the European Convention on Human Rights and this led to a declaration of incompatibility which in turn led to the Mental Health Act 1983 (Remedial) Order 2001 which amended the original legislation. In Bellinger v Bellinger15 the House of Lords declared the failure of the domestic courts to recognise a marriage between a man and a male born transsexual contrary to Arts 8 and 12 of the Convention.

Section 6 of the Human Rights Act 199816 places an obligation on public authorities not to act in a manner which violates Convention rights. It also helps to define what can and cannot be considered a public or a private body. Public bodies would include pure public authorities such as the Police, local Councils or the NHS, Courts and tribunals and hybrid bodies whos classification has proved to be controversial with the task falling to the courts to establish when a private body is said to be carrying out public work or with enough governmental responsibility or functions as to render it a public authority. The JCHRs ninth report on Public Authority pointed out that;

Our predecessor Committee concluded that the Interpretation of public function adopted by our courts was highly problematic their concern at the development in case-law on this issue was such that they concluded that it had led to a serious gap in the protection which the Act was intended to offer which would be likely to lead to deprivation of avenues of redress for individuals whose Convention rights were breached. This gap is not just a theoretical legal problem but has significant and immediate practical implications. In an environment where many services previously delivered by public authorities are being privatised or contracted out to private suppliers, the law is out of step with reality. The implications of the narrow interpretation of the meaning of public authority are particularly acute for a range of particularly vulnerable people in society, including elderly people in private care homes, people in housing association accommodation, and children outside the maintained education sector, or in receipt of childrens services provided by private or voluntary sector bodies.17

Clayton has stated that;

The scope of the HRA is crucially dependant on the meaning to be given to the phrase public authority. However, the decided case law in this area has not been very illuminating.18

In Popular v Donoghue it was held that;

In providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions.19

But in R v Leonard Cheshire Foundation where residents who were being relocated from a care home run by a charity, which had an arrangement with the local council, allowing the local council to fulfil its statutory obligations, alleged a violation of their Art 8 rights under the Convention. It was held that although the care home received public funding there was no public character or stamp to the charities functions nor were they exercising statutory powers.

Section 7 of the Human Rights Act 199820 defines who the victim can be under the Strasbourg test of standing, or the victim test, which, according to Giussani, is much narrower than the existing test of locus standi under judicial review proceedings21. It basically means that they have to be directly affected to be a victim although there is provision to include companies and relatives of the victim where a complaint has been made due to the death of the victim as in Re McKerr the House of Lords accepted that a son questioning why his father was killed by agents of the state was a victim. 22

Section 8 of the Act outlines the courts possible avenues of providing a remedy if a violation has been proven,23 this can include ordering someone released, a declaration of incompatibility, an injunction or even damages although according to Ryan damages will not be awarded unless;

The court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.24

In the Anufrejiva25 case which was three appeals under the one heading, the High Court in N had granted damages when an asylum seeker had been deprived of financial support. On appeal the Court of Appeal held that although it was possible to have a positive obligation to provide support imposed under Art 8 of the European Convention on Human Rights, maladministration would only cause a breach where the consequences were dire. Palmer talks about the positive, negative dichotomy involved in the states failure to take action as well as its express intrusion on ECHR rights.26 He goes on to say that;

In the same way that Lord Woolf has concluded that in the overwhelming majority of welfare needs disputes, under Art 8 ECHR failure by local authorities to meet statutory obligations can be excused on grounds of lack of resources, he has also concluded in Anufrejiva that the proper management of court resources is a legitimate consideration to be taken into account in determining the scope of the right to public law damages under section 8 HRA.27

In conclusion, Wade and Forsyth have said that;

No measure of law reform has had such wide and profound effects on administrative law as has the HRA28

The Human Rights Act 1998 fundamentally changes the way the UK system of justice works, it incorporates the main principles and rights under the European Convention on Human Rights into our own Domestic legal system and makes public authorities more accountable for their decisions by making it unlawful for them to act in a manner contrary to the Convention whilst still preserving Parliamentary Sovereignty by having the provision to set aside Convention rights where they prove to be incompatible with statute. Where this occurs the Act allows the courts to make declarations of incompatibility. Alder has said that;

The courts have applied the notion of margin of appreciation or margin of discretion particularly in the context of decisions made by elected bodies. The width of the margin depends on various factors, chief among which are the importance and the extent of the particular right that is violated in relation to the serious of the public harm if the right were not overridden, and the extent to which the matter involves controversial political, social or economic choices.29

Word count 2072

Statutes

The European Convention on Human Rights

The Mental Health Act 1983

The Human Rights Act 1998

The Mental Health Act (Remedial) Order 2001

Cases

Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595

R v Mental Health Tribunal ex parte H [2001] EWCA Civ 415

Bellinger v Bellinger [2003] UKHL 21

R (N) v Secretary of State for the Home Department; Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406

Re McKerr [2004] UKHL 12

Books

J. Alder, Constitutional and Administrative Law, (7th Ed, Palgrave Macmillan, Hampshire, 2009,)

P. Craig, Administrative Law, (6th Ed, Sweet and Maxwell, London, 2008,)

E. Giussani, Constitutional and Administrative Law, (Sweet and Maxwell, London, 2008)

I Loveland Constitutional Law, Administrative Law, and Human Rights A Critical Introduction. (5th Ed, Oxford University Press, Oxford, 2009,

E. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Hart Publishing, Oregon, 2009)

M. Ryan with contributions from S. Foster, Unlocking Constitutional and Administrative Law, (Hodder Education, London, 2007,)

H.W.R. Wade & C.F. Forsyth, Administrative Law, (10th Ed, Oxford University Press, Oxford, 2009)

Journals

D. Bonner, H. Fenwick, and S. Harris-Short, Judicial Approaches to the Human Rights Act International and Comparative Law Quarterly, (July 2003) Vol 52, pg 552

R Clayton, the Human Rights Act six years on: where are we now? (2007) European Human Rights Law Review

Reports

Joint Committee on Human Rights, Ninth Report, 2007 The Meaning of Public Authority under the Human Rights Act pg7, accessed at, http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/77/77.pdf

1 The Human Rights Act 1998 An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes.

2 E. Giussani, Constitutional and Administrative Law, (Sweet and Maxwell, London,2008, )pg 370

3 Ibid 372

4 The Human Rights Act 1998 s2 Interpretation of Convention rights (1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

5M. Ryan with contributions from S. Foster, Unlocking Constitutional and Administrative Law, (Hodder Education, London, 2007,) pg505

6E. Giussani, Constitutional and Administrative Law, (Sweet and Maxwell, London, 2008,) pg378

7 P. Craig, Administrative Law, (6th ed, Sweet and Maxwell, London, 2008, )pg 552-554

8D. Bonner, H. Fenwick, and S. Harris-Short, Judicial Approaches To The Human Rights Act International and Comparative Law Quarterly, Vol 52, July 2003, pg 552

9 R Clayton, the Human Rights Act six years on: where are we now? European Human Rights Law Review, 2007, 19

10 The Human Rights Act 1998 s3 Interpretation of legislation(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.(2) This section(a) applies to primary legislation and subordinate legislation whenever enacted;(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

11 I. Loveland Constitutional Law, Administrative Law, and Human Rights A Critical Introduction. (5th ed, Oxford University Press, Oxford, 2009,) pg 645

12 M. Ryan with contributions from S. Foster, Unlocking Constitutional and Administrative Law, (Hodder Education, London, 2007,) pg511

13The Human Rights Act 1998 s4 Declaration of incompatibility (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.(5) In this section court means (a) the House of Lords; (b) the Judicial Committee of the Privy Council; (c) the Courts-Martial Appeal Court; (d) in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal. (6) A declaration under this section (a declaration of incompatibility) (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.

14 R v Mental Health Tribunal ex parte H [2001] EWCA Civ 415

15 Bellinger v Bellinger [2003] UKHL 21

16 The Human Rights Act 1998 s 6 Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3) In this section public authority includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) In subsection (3) Parliament does not include the House of Lords in its judicial capacity. (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3) (b) if the nature of the act is private. (6) An act includes a failure to act but does not include a failure to (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.

17 Joint Committee on Human Rights, Ninth Report, 2007 The Meaning of Public Authority Under the Human Rights Act pg7, accessed at, http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/77/77.pdf

18 R Clayton, the Human Rights Act six years on: where are we now? (2007,) European Human Rights Law Review, pg 14

19 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595

20 The Human Rights Act 1998 s7 Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.(2) In subsection (1)(a) appropriate court or tribunal means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act. (5) Proceedings under subsection (1)(a) must be brought before the end of (a) the period of one year beginning with the date on which the act complained of took place; or (b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.(6) In subsection (1)(b) legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) an appeal against the decision of a court or tribunal. (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. (8) Nothing in this Act creates a criminal offence. (9) In this section rules means (a) in relation to proceedings before a court or tribunal outside Scotland, rules made by the Lord Chancellor or the Secretary of State for the purposes of this section or rules of court, (b) in relation to proceedings before a court or tribunal in Scotland, rules made by the Secretary of State for those purposes, (c) in relation to proceedings before a tribunal in Northern Ireland (i) which deals with transferred matters; and (ii) for which no rules made under paragraph (a) are in force, rules made by a Northern Ireland department for those purposes, and includes provision made by order under section 1 of the [1990 c. 41.] Courts and Legal Services Act 1990. (10) In making rules, regard must be had to section 9. (11) The Minister who has power to make rules in relation to a particular tribunal may, to the extent he considers it necessary to ensure that the tribunal can provide an appropriate remedy in relation to an act (or proposed act) of a public authority which is (or would be) unlawful as a result of section 6(1), by order add to (a) the relief or remedies which the tribunal may grant; or (b) the grounds on which it may grant any of them. (12) An order made under subsection (11) may contain such incidental, supplemental, consequential or transitional provision as the Minister making it considers appropriate. (13) The Minister includes the Northern Ireland department concerned.

21 E. Giussani, Constitutional and Administrative Law, ( Sweet and Maxwell, London, 2008) pg379

22 Re McKerr [2004] UKHL 12, see also, E. Giussani, Constitutional and Administrative Law, (Sweet and Maxwell, London, 2008,) pg 380

23 The Human Rights Act 1998 s8 Judicial remedies In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. In determining whether to award damages, or the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. A public authority against which damages are awarded is to be treated in Scotland, for the purposes of section 3 of the [1940 c. 42.] Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; for the purposes of the [1978 c. 47.] Civil Liability (Contribution) Act 1978 as liable in respect of damage suffered by the person to whom the award is made. In this section court includes a tribunal;damages means damages for an unlawful act of a public authority; and unlawful means unlawful under section 6(1).

24 M. Ryan with contributions from S. Foster, Unlocking Constitutional and Administrative Law, (Hodder Education, London, 2007,) pg526

25 R (N) v Secretary of State for the Home Department; Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406

26 E. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Hart Publishing, Oregon, 2009,) pg241-242

27 Ibid 254

28 H.W.R. Wade & C.F. Forsyth, Administrative Law, (10th ed, Oxford University Press, Oxford, 2009,) pg147

29 J. Alder, Constitutional and Administrative Law, (7th ed, Palgrave Macmillan, Hampshire, 2009,) pg 407