Common Law Reasoning and Human Rights Act

The European Convention on Human Rights (ECHR) was envisaged to prevent the repetition of the immense Human Rights violation as experienced in World War II. The formation of the Council of Europe, under its authority, the Convention on Human Rights and Fundamental Freedoms was drafted and designed to guarantee the protection of basic human rights against the state. The rights set out in the Articles of the ECHR include the right to life; prohibition of torture; the right to a fair trial; the right to respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; the right to marry, and prohibition of discrimination. The United Kingdom (UK) signed the European Convention in 1950 but did not incorporate it. This makes it a dualist country which means that international treaties signed by the executive cannot create rights unless and until incorporated into domestic law. Since 1950, British citizens have enjoyed explicit protection of several specific freedoms under the ECHR. Until the Human Rights Act was implemented in 2000, any British citizen who felt that their rights had been infringed had to take their case to the European court of Human Rights in Strasbourg, France which was a complex and time-consuming process.

The ECHR was incorporated into domestic law under the 1998 act, thus Human Rights Act 1998 (HRA 1998) came into existence with the purpose to achieve the partial incorporation of the Convention into English law. The HRA 1998 gives further legal effect in the UK to the fundamental rights and freedoms contained in the European Convention on Human Rights, which came fully into force on 2nd October 2000. This means that people in the UK takes their cases into a UK court. The Act has claimed to maintained a balance between enabling judicial protection of human rights and protecting the sovereignty of Parliament. The judiciary plays a big role in decision making when it concerns the rights of the people. Section 3 of the HRA 1998 requires the court to interpret primary and subordinate legislation in a way which is compatible with Convention Rights, ‘so far it is possible to do so’ as shown in the case Ghaidan v Godin-Mendoza(2004). This interpretive obligation applies to all legislation, whether enacted before or after the HRA and it allows the courts to go beyond previously accepted limits in seeking ‘possible’ meanings of the words. This section was considered in R v A (Complainant’s Sexual History) [2002], where the House of Lords gave guidance as to the correct approach. However, Section 3 have its limits as shown in the case of appeal by Re S(Children) where House of Lords rejected the use of Section 3 on the basis that it would have undermined a fundamental feature of the 1989 Act. On the other hand, under Section 4 of the act, if a court concludes that a compatible interpretation of a provision is not possible, it may issue a Declaration of Incompatibility. This serves to put the government on notice of that fact so that a change in the law can be considered. It does not affect the validity of the Act in question and remains in law unless and until Parliament deals with the incompability.

The HRA 1998 does not only has an impact on the judiciary but it had impacted the British subjects as well. The articles such as Article 2 (Right to Life), Article 5 (Right to Liberty) and Article 6 (Right to Fair Trial) gives a strong foundation on which is helpful for the people to seek justice. It has been an instrument in creating a stronger human rights dimension to English law over the last decade. It takes the realization to the people’s legal rights and protection to the next level. For example, the HRA is playing an important, but gradualist role in marking out the boundaries of a modern privacy law in UK. In Douglas v. Hello! Ltd, the Court of Appeal held that individuals had a right of personal privacy which was grounded in the equitable doctrine of breach of confidence. HRA also played a substantial part in clarifying rights relating to personal identity (Bellinger v Bellinger[2003]), same sex relationships (Ghaidan v Godin-Mendoza[2004]) and the enjoyment of family life in (Secret of State for the Home Department ex parte Mellor, R v [2001]). HRA 1998 has also been used to justify checks on the powers of the state to detain suspected terrorists. In A v. Secretary of State for The Home Department[2004], the House of Lords held that the indefinite detention of the foreign suspected terrorist was against Article 5 (Right to Liberty) of ECHR. Another leading case, Malone v United Kingdom has helped the defendant, Malone to seek justice in regards to his right to privacy under Article 8 where he claimed that the interception of his telephone has interfered his private life. The High Court dismissed his appeal and the case came before the European Court of Human Rights which held that there has been a violation of Article 8. The government now have to be more accountable to their actions.

Although the Act provides a charter of rights now enforceable before the domestic courts, under the constitution of the United Kingdom, and consistent with the doctrine of parliamentary sovereignty, legislation cannot be entrenched. It cannot be given an exclusive or greater status than the Acts of Parliament. Thus, this seems to have little impact on the liberties of the British citizen. In Stewart v UK[1985], no violation of Article 2 was found when a teenager was killed by plastic baton rounds fired into a crowd during a riot. This raised the question that does this meant that the teenager has no right to life due to the riot. She has every right to life despite the riot as she can be seen as killed innocently. Further example can be seen in the case Brogan v UK[1989] where the laws allowing suspected terrorists to be detained for up to seven days without being brought before a judicial authority were found to breach Article 5. This does not protect the freedom of a person where any person suspected of terrorist can be detained without trial. The court can only issue Declaration of Incompatibility under Section 4 where a piece of primary legislation cannot be construed consistently with Convention rights under Section 3. There is no legal duty on the government to repeal or amend incompatible legislation, nor accept remedial measures the ministers may propose. Therefore, the ECtHR has been reluctant to regard the declaration procedure as an ‘effective remedy’ under the ECHR. Under HRA 1998, Section 10, ministers can amend non-compliant legislation by ‘remedial order’- provided the minister concerns finds ‘compelling reasons’ for doing so. This helps to minimize the practical problems caused by the declaration.

One of the problems of the legislation of HRA 1998 is that is does seem to bring the courts into political place. The intention of the HRA was ‘to provide as much protection as possible for the rights of individuals against the misuse of power by the state. The Human Rights Act has made the fight against crime difficult in various area. Some are direct and some are indirect. One example is the Assets Recovery Agency, which was set up to seize the assets of major criminals. The agency has been forced to spend millions of pounds fighting legal challenges brought by criminals under HRA. This has had bogged down cases for years, and the backlog in the courts has grown to 146 uncompleted claims. The Director of the Agency has directly blamed the human rights “bandwagon” for thwarting its efforts. Thus, the Conservatives in particular have indicated a desire to repeal the HRA. The Labour government and the Conservative opposition (in Amos 2009) have been discussing the move to a UK Bill of Rights. However, neither party seems to seriously suggesting a dismantling of the whole HRA and a return to the past.

Nevertheless we should consider whether the HRA 1998 could be repealed without any consequence. The doctrine of implied repeal does not operate and only an express intention to amend or repeal the Act. This allows the HRA 1998 to enjoy an immunity from it as can be seen in the case of Thoburn v Sunderland City Council [2002]. It will not be a politically easy task to carry out as it would remove the protection of human rights under UK and also create a drift between the judiciary and parliament. The repeal of the HRA would create a void in domestic law. The Lisbon Treaty which was incorporated in 2009 makes an obligation to all European Union (EU) members to comply with EU Charter of Fundamental Rights (the Charter) whenever they act within the scope of EU law. In practice, on any repeal of the HRA, the Charter would provide a point of reference for continuing the application of Convention rights in domestic law, at least in all cases in which the legal dispute in question arises within the frame of an EU law. Further example can be seen in the role of the international law where international treaties which are not incorporated into domestic law do not have direct effect is increasingly common for them to be recognized in a number of ways which shape the development and interpretation of the law. Unincorporated treaties are used to resolve ambiguities both in legislation (R v Lyons [2002] UKHL 44) and the common law (A v Secretary of State for the Home Department (No 2) [2005] UKHL 71). Where decision makers profess to take administrative action consistently with them, the courts will ensure that the international legal standard is properly applied (R v Secretary of State for the Home Department ex parte Launder [1997] 3 All ER 961). Therefore if by the repeal of the HRA the government sought to reverse the existing incorporation of the ECHR in UK law, the treaty would at the very least continue to be applied in these ways. The repealing of the HRA would cause the common law to shrink back within its former parameters as if the Act had never existed. It will have the same effect as overruling precedent except in this case that it will be multiple overruling. While the Act may have been the tide on which full recognition of Convention rights was brought to the UK, its withdrawal seems unlikely to have the reverse effect. Human rights thinking (already, as Lord Bingham noted, highly influential prior to the HRA) is now thoroughly interwoven into domestic law. It seems quite capable of subsisting there without direct legislative support.

In conclusion, it can be seen that some of the direct consequences of the HRA have been desirable. There have been some rulings setting important precedents that we can all welcome of the hundreds of cases that have come to court involving the HRA, with some 400 in the last year alone. However, on the other hand, it has not actually proved to be effective in protecting fundamental rights in Britain. It has not protected the right to trial by jury and it did not prevent the right to freedom of speech from being undermined in the Government’s legislation on religious abhorrence. At the very least, its repeal would be likely to cause considerable uncertainty in the period before suitable cases could be taken to the Supreme Court. It would remove the explicit democratic underpinning from the protection of Convention rights in the UK risk placing the judiciary at odds with Parliament. There is evidence that even before the election the Conservatives were beginning to accept that a repeal of the HRA was not a legally simple matter, and to envisage their British Bill of Rights as incorporating Convention Rights. The plan to repeal HRA 1998 will not be favourable at this stage as it will lead to political unrest and the present government might lose the support of the people. However, senior serving judges have been unusually outspoken in their support for the HRA. Lord Phillips has called the Act “an outstanding contribution to the upholding of the rule of law in this country”. And Baroness Hale has disclosed the revealing observation that “among the Supreme Court judges sitting behind the woolsack to hear the Queen’s Speech at the opening of the new Parliament…there was some relief to hear that it is not instantly planned to repeal the Human Rights Act”.