Repealing The Humans Rights Act

Every state has a fundamental duty to protect the rights and freedoms of its citizens. In the majority of democratic states, fundamental rights are defined and protected by law under a written constitution. In the United Kingdom, rights and freedoms have traditionally been protected either by statutes passed by the Parliament giving fundamental rights to the people or judges declaring rights under the common law [1] . Until 1998, there was no declaration or fundamental rights.

After the Second World War, there was felt to be a great need for European political, social and economic unity. This led to the formation of the Council of Europe in 1949. Under its authority the convention on human rights and fundamental freedoms were drafted, designed to guarantee the protection of basic rights against the state. Although the convention on human rights was ratified by signatory states, including the United Kingdom, in 1951, it was not until 1965 that the British government gave individuals the right to petition under the convention. The UK courts were unable to give effect to the rights contained in it until the Human Rights Act (HRA) came into force on 2 October 2000 [2] . This is because of the constitutional principle that Parliament makes the law and judges apply the law, therefore judges cannot apply law made by another body unless they are given permission by the Parliament, which came in the form of the HRA 1998.

Before the HRA 1998, the only avenue for making a complaint about Convention violations was through an application made to the Court of Human Rights in Strasbourg. However, a number of procedural hurdles had to be overcome. The Act seeks to give direct effect to the European Convention on Human Rights in domestic law, thereby enabling claimants to bring an action directly before UK courts instead of having to take their case to the European Court of Human Rights [3] . In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless an Act of Parliament specifically requires them to do so. It also requires UK judges to take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to ignore it. But the courts are still allowed to issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the HRA seeks to maintain the constitutional principle of Parliamentary sovereignty. However, an individual can still has the option to take his case to the Strasbourg court as a last resort [4] .

Unlike the European Communities Act 1972, which simply incorporated directly applicable European Community law into British law, the HRA has selectively incorporated elements of the convention by giving them a special legal status as the ‘Convention Rights’. This in fact encompasses all the major substantive rights under ECHR to the existing derogations and reservations entered by the UK. For the first time, in the history of English law, individuals have been provided with a charter of positive rights. However, the Act does not take away any rights that already exist (S.11). The framework of the Act is as follows: Section 1 sets out that specified Convention rights which “are to have effect”. The legal effectiveness of the Convention Rights is made by S.6(1) of the HRA 1998 which provides that it is unlawful for a public authority to act in a way which is incompatible with convention rights. S.7(1) of the Act provides the avenues of redress for persons who claim that their convention rights have been infringed by a public authority. The Act has also given domestic judges significant legal powers. These include: s.8, which provides that a court or tribunal which finds the act of a public authority to be unlawful under s.6(1) may grant whatever remedies within its powers that it considers just and appropriate. One of these is that under s.3(1), the courts have a duty to interpret primary and secondary legislation, so far as it is possible, consistently with convention rights. (Ghaidan v Godin-Mendoza) [5] . In deciding cases, the courts in UK must take into account any relevant decisions of the European Court of Human Rights, s.2 (1). The decisions are however, not binding. This will enable UK courts to decide cases and build on the jurisprudence developed by the European Court of Human Rights [6] .

It is important to recognise the controversies created by the absolute rights and qualified rights defined by the European Convention on Human Rights (ECHR). This is because all rights are not protected to the same degree. Some rights can be suspended ‘in time of war or other public emergency threatening the life of the nation’ (Article 15). The effect of this is that during the period of derogation, the Convention right is not protected. Article 15 has not been incorporated in domestic law under the HRA 1998; instead a statutory procedure for derogation has been introduced under section 14. Rights are divided into: absolute, limited and qualified. Absolute rights are those rights which cannot be suspended by the domestic courts under any circumstances. Absolute rights under the ECHR include: the right to life (Article 2), the prohibition of torture or degrading treatment or punishment (Article 3). Limited rights are those which are not qualified, but can be derogated from in times of emergency. These include right to liberty (Article 5) and right to a fair trial (Article 6). Qualified rights are rights which are legitimate for interference, as long as the interference is in ‘accordance with law’ and ‘necessary in a democratic society’. These include right to privacy (Article 8) and some others [7] .

The absolute rights under the ECHR have created many controversial issues. Under section 4 of the HRA 1998, which allows the domestic courts to declare an article incompatible, there have been a number of challenges, some successful, but many more unsuccessful. A case illustrating Article 3 is Ireland v UK [8] , the matter in question related to whether interrogation techniques by police and security forces in Northern Ireland in relation to suspected terrorists amounted to torture, or inhumane or degrading treatment. In its interpretation of torture, the ECtHR decided that the conduct fell short of the standard inherent in torture, but did amount to inhuman and degrading treatment. In the case of R (Hirst) v Sec of State for the Home Department [9] , a prisoner appealed that his right under Article 3 was violated when he was prevented from voting by section 3 of the Representation of the People Act 1983. The case was dismissed by the High Court. In 2004, the ECtHR ruled unanimously that there had been a violation of Article 3 of the First Protocol. In the recent case of Greens and MT v UK [10] , the Court of Human Rights ordered that the government, having failed to implement its judgment in Hirst, must bring forward legislation within six months of the judgement becoming final to reform the law.

The HRA has had a great impact by ending indefinite detention without trial under the Government’s Anti-Terrorism Crime and Security Act 2001. This led to immense public and legal debate regarding whether the power to detain foreign suspects’ indefinitely is compatible with Article 5 of the ECHR. This can be seen in the case of A v Secretary of State for the Home Department [11] . The House of Lords held by a majority that, whilst the 2001 Act made detention legal, it was incompatible the ECHR. Lord Hoffman strongly dissented by stating that not only was the Act discriminating between nationals and foreign nationals, it was incompatible with the ECHR as a whole. He also stated “The real threat to the life of the nation” [12] . By this he meant that the power of detaining indefinitely was incompatible on its own, whether such a power is used on foreign nationals or UK citizens as well. Another case which came under the 2001 Act was A and Others v Secretary of State for the Home Department, in which the Court of Appeal held that the Secretary of State could not possibly ascertain that all the evidence received by foreign nationals was obtained properly or not. So, the COA’s decision allowed the Secretary of State to rely on evidence obtained by torture. However, the HOL unanimously overruled the decision of the COA by stating that “statements obtained by torture can never be admissible as evidence in any court of law, ‘irrespective of where, or by whom, or on whose authority the torture was inflicted’ [13] . Lord Hoffman is noted to have said “The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it” [14] . Therefore, it is argued that the passing of the Act has not affected the operation of the common law nor its ability to provide relief in certain cases.

It is also important to recognise the constitutional status of the Act which is consistent with the concept of Parliamentary sovereignty, as it has no higher status in law than any other statute. It can accordingly be amended or repealed, although the non-legal, moral and political constraints would make this difficult. However, mindful of the importance of the Act and the need to protect it from amendment by implied repeal, it has been judicially declared that the HRA is a ‘constitutional statute’ which may not be impliedly repealed. R v Secretary of state for the Home Department exparte Simms [15] . Although, repealing of the HRA will not have any legal consequences, however, there may be political and social consequences. For instance, the courts will not be able to scrutinise the activities of the government, which may say that it took a certain action to protect national security, but enforcing the rights provided under the ECHR through the HRA allows the courts to protect the fundamental rights of an individual, be it a terrorist’s detention or a criminal’s right to vote. Therefore, the HRA strengthens the theory of separation of powers, which separates the executive from the judiciary, an idea which is taken back from John Locke [16] .

Therefore, the repealing of the Act has been and is still on the agenda of political parties, mainly because they want to reduce the courts’ interference in their activities. While proposing the idea, the current government is also proposing to “supplement” a Bill of Rights. This, to begin with, would render certain rights enshrined under the Convention unenforceable [17] .

Although there may be advantages of repealing the HRA, the more important issue is on the impact of the consequences on the British subjects. Having seen the impact of sections 2,3,4 and 10, supported with numerous case law heard by domestic courts, it can be said that in reality the HRA has had a great impact on British citizens. This is because before the passing of the Act, UK citizens had to go to the ECtHR after going through the English courts, because the courts regarded the Human Rights Act as an aid to interpretation but had no jurisdiction directly to enforce the rights and freedoms under the Convention. Therefore, after the HRA, the UK courts have the jurisdiction to hear cases and enforce the rights under the ECHR. This in itself is a significant change and therefore, the HRA is called a “revolutionary Act” and hence, should not be repealed.