Human Rights Act Impact on English law

I will be examining the quotation made by Lord Irvine in the article entitled The Human Rights Act Two years on (2003) public law 308. I will be establishing how the Human Rights Act 1998 made its effect and impact on the English legal system particularly with respect to how the law is now interpreted.

The Lord chancellor Lord Irvine Stated “The balance between intense judicial scrutiny and reasonable deference to elected decision-makers is a delicate one to strike, but the judiciary have stuck it well and I welcome that” [1]

The Human Rights Act 1998 came on received Royal Assent on 9th November 1998, but was only brought fully into force on the 2nd October 2000. Some of the convention rights and freedoms became part o English domestic law, and became directly enforceable in our courts. These rights are domestic rather than international rights and their source is the 1998 HRA rather than the Convention (see e.g. in Re Mckerr (2004) [2] per Lords Nicholls Hoffmann and Rodger of (25), (26) and (74-75) respectively. The aim of the Act is to ensure that a set of basic human rights, which are listed in the Act, and are fully respected and enforced in the UK. The Act essentially changes the way the UK system of justice works, and makes public authorities more responsible for their decisions.

The consequence of the Act is to put human rights at the centre of the UK legal system. Under the Human Rights Act, everyone is entitled to expect that the government, and all public agencies and organisations should have respect for their basic human rights. If they think that their rights have been ignored, they can bring a case in the UK courts to challenge an action or a decision by any public authority on the grounds that it interferes with their rights – for example their right to express their views freely, or their right to privacy, or their right to a fair trial in court.

Under the Human Rights Act, human rights standards are applied from the beginning. The principle of the Act is that all public authorities must act compatibly with the human rights standards contained within it.

If someone believes that their human rights have been unlawfully interfered with, the very first court or tribunal before which a case is heard must take human rights standards into account, and ensure that, whatever decision is taken, it does not interfere with these rights.

If a person human right has breach by any then organisation that performs a public function this can assert their Convention human rights in all UK courts and tribunals. They are also entitled to expect that the courts take account of their rights in all cases, from maintenance proceedings to planning decisions, from employment disputes to criminal trials. If, having pursued all available appeals, and the person still believes that his or her human rights have been interfered with and that the UK courts have not applied human rights standards properly, it is, of course, still possible to take a case to the Strasbourg court to enforce these rights there.

Role of the Parliament.

Parliament could pass whatever laws it thought proper, without he courts being able challenge the legality of such legislation. Although the HRA 1998 has not directly challenged this relationship it has nonetheless altered is significantly. Even when the courts hold that a piece of primary legislation does not comply with the provisions of the ECHR, that court cannot declare the legislation invalid. The court has no such power to strike down primary legislation. The court can issue a declaration of incompatibility stating that the Act breaches the provisions of the convention (see Bellinger v Bellinger (2003)) [3] . Although there is change within the incompatible Act it remains solely the power of parliament it is highly likely that a judicial declaration of impartibility would lead to an alteration of the Act in question. The Human Right Act 1998 provides for a fast-track procedure for changing any Act subsequently found to be in breach of the convention.

With section 19 of the Act it is important because it requires the minister to introduce a bill to parliament to make a statement; the bill is compatible with the convention. The government nevertheless wishes the House to proceed with the bill. Parliament will therefore not legislate incompatibly with the convention, without being absolutely clear that it is doing so. [4]

Role of the Court

Under the Human Rights Act the courts can find their own ways of interpreting the convention and can begin to develop a distinctive law of Human Rights for the UK.

Although the court are required by the Human Rights Act, to take into account the decisions of the court of Human Rights, in Strasbourg are not obliged to follow them in all cases in the early stages of the Human Rights Acts. The decision of one of the Strasbourg court will be off great assistance and importance for all those applying the conventions Human Rights standards here.

It considers the incidence of Human Rights Act claims in judicial review proceeding and compares the outcome patterns of Human Right Act 1998 and non-Human Rights Act case concluding that there is little evidence to suggest that the introduction of the Human Rights Act has led to a considerable increase in the number of claims brought, despite the steady year-on-year rise in the number of claims issued in the administrative court. It established that the HRA was cited in just under half of all civil claims between January and June 2002, although this varied considerably according to the subject matter of the application. It further found that, in the majority of case the human rights argument did not add significantly to the case or to the claimant prospects of success.

The Lord Iriving stated that “In the two years since the Act came into force, the judicial system has matched up well to the demands placed on it by the Act. That is the result of a carefully drafted Act and two years of intense preparation by the Government and the Courts” [5]

A year after implementation the Act it still have not had the effect that may have be anticipated by the terms of either the number or complexity of challenges on the Human Rights points. If it had been raised it would have gone forward in any event, most typically in judicial Reviews. The judges will always decided cases in areas of political controversy. The Human Rights Act has ushered in only a difference of degree.

Some leading cases show that the courts have not sacrificed the wider public interest in favour of the rights of the individuals. Many cases involve the privacy of public figures and balance that must be struck between their rights to respect for a private life in Article 8: The right to respect for private and family life, home and

correspondence. Article 8 protects the individual’s right to privacy, and prevents a public authority from intruding disproportionately into a person’s private life. For

example, Article 8 may be breached, in some cases, by subjecting people to surveillance, or intercepting their telephone calls, or publishing newspaper accounts of their private life. Article 8 also protects rights to family life, and means that, for example, decisions regarding custody or adoption must take into account the rights to family life of all those involved. It also protects the individual’s right to physical

integrity, and the right to respect for the home.

Article 10: The right to freedom of expression. Article 10 guarantees everyone’s right to express their views and opinions without interference by the State.

It guarantees the freedom of the press, which is seen as of fundamental importance in any democracy. Freedom of expression also guarantees the right of artists to express themselves through their work, and includes the right to receive and impart

information. [6]

The Lord Chancellor also spoke of the influence that British judges were having on the Jurisprudence of the European Court of Human Rights in Strasbourg. “Now we do not expect cases to be taken from the UK to Strasbourg unless the convention issues have been tested in our own courts first, so our judges can now influence and contribute to the development of Strasbourg Jurisprudence” [7]

The Human Rights Act 1998 has also reflective inference for the process of English Legal system. Section 2 of the Act requires courts to take into account any previous decision of European Court of Human Rights. This provision impacts on the operations of the doctrine of precedent within the English legal system, as it successfully authorize the overruling of any previous English authority that was in conflict with a decision of ECHR. This has implication for precedents relating to cases in which statues were interpreted without reference on the ECtHR jurisprudence. More immediately for this question, however section 3 of the Act requires all legislation to be read so far to give consequence to the rights provided under the Convention. This power has the more obvious potential to invalidate previously accepted interpretation of statues, which were made by necessity, without recourse to the Convention (see R v A (2001) [8] and Mendoze v Ghaidan (2002) [9] are cases in point).

The courts may look at example of courts in dissimilar countries, and look at international agreements. In making a new law of human rights, based on the

Convention, the UK courts have a range of sources to draw on. They can look to the

decisions of the courts in other countries, such as Canada, the United States, India or South Africa, where human rights are also sheltered by the Courts. They can also look to the other international Human Rights treaties that the United Kingdom has signed. These might embrace, for example:

The International Covenant on Civil and Political Rights (ICCPR)

The Convention on the Elimination of all Forms of Racial Discrimination (CERD)

The Convention against Torture, and Other Cruel, Inhuman and Degrading

Treatment or Punishment (CAT)

The European Convention for the Prevention of Torture and Inhuman and Degrading

Treatment or Punishment

The Convention on the Rights of the Child (CRC)

Role of the executive

The role of the executive under the Human Rights Act involves engaging positively with parliament and courts.

The executive must continue to build convention standards into decision-making at all levels, so that decisions are proportionate, rational and respectful of fundamental rights. It means it must be refute in the face of Human Rights challenges, so that it can energetically demonstrate and defend the qualities of its decisions.

“What about when the Courts disagree? In a democracy under the rule of law it is not mature to cheer the judges when a win is secured and boo them when a loss is suffered”. [10]

The Government can agree to difficult Court decisions, not as defeats, but as steps on the road to healthier governance. The working out of the Act is not an obstruction to good administration, but an indispensable factor in the path to achieving it. So where domestic decisions go against the Government, it will petition where sensible, and also where not. Parliament will have to change the law, or it will get on and execute the decision.

Losing is not a bad for Government, or for the citizen. There have been Strasbourg cases over the years that have encouraged reforms which we now take for granted. The similar dynamic can be expected in domestic human rights litigation – with the added benefit that decisions by our own Courts are meant to be more sensitive to the British context. The Government does not see triumphant in challenges in Court as affronts to our constitutional arrangements.

Conclusion

The aim of this paper has been to provide a concise and general introduction to questions that arise under the Human Rights Act and the European Convention on Human Rights within the English Legal System. It was to narrow down what Lord Irvine felt about the Human Rights Act 1998 and how it had effect or made an impact on the English Legal System and the respect to the Law. The HRA 1998 made the parliament act in a way which incompatible, made the Court be under a duty to interpret legislation in a way that compatible with the convention. The courts also show how the European convention Rights against discrimination. The European Convention on Human Rights reflects these basic principles. The rights Included in the Convention range from basic guarantees such as the right to life and the right not to be subjected to torture, to ensuring that people are given a fair hearing in the courts, and to protections for privacy and free expression, and protection against discrimination. And also the executive is there to help engage with the parliament and court.