THE HUMAN RIGHTS ACT 1988

THE HUMAN RIGHTS ACT 1998

INTRODUCTION

The European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR) was signed in Rome in 1950. ECHR made sovereign states responsible to an international court. The United Kingdom (UK) signed the Convention and also recognised the power of the European Commission on Human Rights to hear complaints from individual UK citizen and the authority of the European Court of Human Rights (ECtHR) to adjudicate on such mater. The UK was the also the first nation to ratify the Convention in 1951.

STATE OF AFFAIRS BEFORE THE HUMAN RIGHTS ACT

Although British lawyers were central to the drafting of the convention, the convention was not made part of the domestic law: it was thought that the common law provided adequate protection for rights and liberties. The consequence of non-incorporation was that the convention could not be directly enforced in English courts. In R v Secretary of State for the Home Department (1991) the Court of Appeal decided that Ministerial directives did not have to be construed in line with ECHR as doing would amount to introducing ECHR into English law without the necessary legistation. The then Lord Chief Justice Lord Bingham and most members of the judiciary were in support of incorporation the following unpalatable consequences of non-incorporation:

a) Citizens seeking remedy for breach of right protected under the ECHR had to go through the tortuous journey of applying for the case to be heard at the European Court of Human Rights in Strasbourg
b) The growing resentment among the Judges of having to make decisions in line with the UK law which they know fully well would be overturned on appeal at the European Court.

The courts realising that they were not completely bound in deciding cases in presumed ignorance of ECHR did what they could in making decision in line with the convention. For example where domestic statute is enacted to fill ECHR or where the common law is uncertain, unclear, incomplete and ambiguous, the courts ruled wherever possible in manner which conformed to ECHR. Lord Bingham was once quoted in a Grey Memorial Lecture in 1998 as saying through some of the decisions by the courts the convention has made a clandestine entry into the British law by the back door, being forbidden entry through the front door.

The reason why the Convention was not incorporated into the domestic law was the strong view of the Conservative party which was in power then that such incorporation was undesirable and unnecessary. It was thought that the common law provided adequate protection for rights and liberties.

The judicial manoeuvring notwithstanding, there was still the belief that relief that the protection of rights under existing constitutional arrangements was not satisfactory and the agitation for the incorporation of ECHR into English law by both the Labour Party, then in opposition and the pressure groups continued. The opportunity to effect the desired change came in 1997 following the removal of John Major’s Conservative government by the Labour Party in 1997

The freedom of individual actions in English laws was based on negative rights (i.e. individuals were free to do whatever was not forbidden by the law rather that positive rights which could not be taken away. The rights which have emerged from common law can always be modified or removed by parliament by passing new legislature.

It was also argued that contentious legislature such as Public Order Act of 1986 and the Criminal Justice and Public Order Act of 1994 significantly restricted the liberty to assembly to assembly and associate. Kaye v Robertson (199) FSR 62 did not affirmatively decide that there was a right of privacy in English law. There was an increasing anxiety that the protection of human rights in the UK was not up to international standard. This was evidence by the number of cases that had been brought against the UK under Convention

THE HUMAN RIGHT ACT 1998

The Human Rights Act was eventually enacted in 1998 and it not came into force generally until October 2000. The reason for the delay was to train the all members of the judiciary in the consequences and implication of the new Act.

OVERVIEW OF THE HUMAN RIGHTS ACT (HRA 1998)

The Articles of the Convention which was incorporate into English law and listed in Schedule I to the HRA 1998 guarantees right to life, freedom from torture, freedom from arbitrary arrest, right to fair trial, right to privacy, freedom of religion, freedom of expression and freedom of assembly and association. Specifically the Act guarantees absolutes and inalienable rights in articles 2,3,4,7 and 1. It also guarantees limited rights in 8,9,10 and 11 i.e. contingent and subject to derogation.

PUBLIC AUTHORITIES
S.6(1) specifies that it is unlawful for a public authority to act in a way which is incompatible with a Convention right with an exception that s.6)1 does not apply to an act of a Public Authority. S.6(2) the authority could not have acted differently because of primary legislation. S.6(3) define public authority as including a court or tribunal, any person, certain of whose functions are of public nature.

Definition of a public authority does not include either House of Parliament or a person exercising functions in connection with the proceedings in Parliament. HRA is not entrenched and a contradictory of the limb of the parliamentary sovereignty which states that no parliament can bind a future parliament. There are no special ‘manner and form’ or ‘redefinition’ provisions conferring on it special status. It can be repealed or amended just like any other act of parliament, though this is unlikely given the extra-legal constraints and political embarrassment that might be encountered.

Human Rights Act 1998 incorporates the European Convention on Human Rights into UK Law. Under s.2 when deciding on questions under the convention, courts must ‘take into account’ the case law of the European Court on Human Rights. S.3 of the Act provides that it could should interpret ‘as far as possible to do so’ domestic structure in line with ECHR. S.6 provides that public authority acting incompatibly with the EHCR will be acting unlawfully. They are therefore explicitly not bound by those decisions, but are under duty to consider them. However, under s.6 it is unlawful for the courts (as public authorities) to act in a way which is incompatible with the convention. Under s.3 of the Act the courts are obliged to interpret the legislation ‘in so far as it is possible’ in a way which is compatible with the European Convention on Human Rights. Even if the Parliament intention in passing the Act was clear, the courts must try to interpret the Act a way which is compatible with the Convention, regardless of the intention of the Parliament. The fear that HRA will threatened the doctrine of separation of power by the courts overruling and re-writing the will of parliament has not been realised. S.4 states declaration of incompatibility can only be made if any domestic legislation is found to conflict. An example is in R v A 2001 where the court ruled that the relevant section of Young Persons and Criminal Evidence Act governing admissibility of evidence concerning the complainants previous history in rape cases contradicted s6

HRA has certainly ‘breathed new life’ into the English Legal system since its enforcement began in 2000.

INTERPRETATION PROVISIONS
S.2(1) states that a court or tribunal must take into account a number of sources of European Law, and Human Rights Law i.e. Judgement, decision, declaration or advisory opinion of the European Court of Human Rights; Opinion of the Commission given in a report adopted under Article 31 of the Convention; Certain decisions of the Commission in Articles 26 and 27 of the Convention; Decisions of the Committee of Ministers taken under Article 46of the Convention

The end of the section specifies that the legal sources can be drawn upon ‘whenever made or given’ and so could pre-date the HRA’. It also gives the court the discretion to determine whether or not the authorities are relevant to the proceedings in question. Incompatibility does not affect the validity or continuing operation of any provision, or the validity or continued operation of incompatible subordinate legislation, if the primary legislation from which it is derived prevents the removal of the incompatibility

RESTRICTION OF NON ABSOLUTE RIGHTS AND PROPORTIONALY

The decisions of the courts in the cases discussed below highlights how the courts tried to read ECHR has to be read as balancing community rights with individual right. In Brown v Stott (2001), the Privy Council held that while the overall fairness of a criminal trial could not be compromised, the constituent rights contained in Article 6 of ECHR where not in themselves absolute and could be restricted in certain limited conditions, so long as they were aimed at ‘clear policy objectives’ and ‘were proportionate’ to the situation under consideration. Also the House of Lords of Lords in Sheldrake v DPP (2004) ruled that s.5(2) of the Road Traffic Act (RTA) 1998 did not require prosecution to prove that respondent was likely to drive while drunk but allow the defendant to escape on the balance of probabilities if they could prove that there is no likelihood of driving in their intoxication condition. In R v Benjafied (2001) the Court of Appeal affirm s.3(2) of the Proceeds of Crime Act (PCA) 1995. In McIntosh v AG for Scotland (2000) the High Court of Justiciary ruled that s.3(2) of the 1995 displaced the presumption of innocence in Art 6(2). The Privy Council overturned the decision. The Privy Council overturned the decision. In reaching the Privy Council approved the decision of the Court of Appeal in R v Benjafied (2001). In Phillips v Uk 200, the ECtHR concurred with the decision in McIntosh 2001by a majority of 5:2. that the confiscation procedure under the Drug Trafficking Act 1994 was not contrary to ECHR. When R v Benjafied (2001) came to the House of Lords, it felt comfortable to followed the decision in both Benjafied and Phillips. The power of the court was further extended under the Proceeds of Crime Act (PCA) 2002 which came into effect in March 2003.
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DECLARATION OF INCOMPATIBILITY
S.4(2) states that when a court finds that a provisions is incompatible with a Convention right, it may make a declaration of that incompatibility. S.4(5) give the power to declare incompatibility to House of Lords, the Judicial Committee of the Privy Council; the Courts-Martial Appeal Court; In Scotland, the High Court of Justiciary sitting otherwise that as a trial court or the Court of Session; In England and Wales or Northern Ireland, the High Court or the Court of Appeal. S.4(6) a declaration of incompatibility under this section affects neither the validity, continuing operation nor the enforcement of the provisions in respect of which it is given and secondly the declaration is not binding on the parties to the proceeding to which it is made. S.10(1) state that if a provision of the legislation has been declared incompatible; and if certain conditions are satisfied with reference to the fact that there will not be an appeal against the incompatibility, then a minister may, under s.10(2) make such an order that the incompatibility will be removed. The HRA thus leaves the sovereignty of the Parliament in place

Since 2000 there have been eight declarations relating to various areas of law; mental health, immigration, taxation, offences against the person, sentencing, and embryology. In Bellinger v Bellinger, s.11(C) Matrimonial Cause Act 1973 was declared incompatible with Article 8 and 12. The government responded with the Gender Recognition Bill. In R v (1) Mental Health Review Tribunal, North & East London Region the Court of Appeal held that ss 72 and 73 of the Mental Health Act MHA (1983) were incompatible with Art 5(1) and (4) of the ECHR. It was in Wilson v First Country Trust (2000) that court indicated its willingness to declare incompatibility under HRA.

CRITICISM
The non-establishment of Human Rights Commission to educate people on the rights provided by the Act and how take advantage of them was criticised. The government responded by announcing in October 2006 its intention to establish a new Commission for Equity and Human Rights to bring together and replace the existing Commission for Racial Equality, the Equal Opportunity Commission and the Disability Rights Commission with the aim of promoting an inclusive Agenda, underlining the importance of equality for all in the society as well as working for the combat discrimination affecting specific groups.

JUDICIAL INTERPRETATIONS OF STATUTES UNDER SECTION 3 OF THE HRA

R v a (2001) the held that the restriction in s.41 of the Youth Justice and Criminal Evidence Act 1999 were prima facie capable of preventing and accused from putting forward relevant evidence that could be crucial to his defence (Art. 6 –fair). Rather than declaring incompatibility the House of Lord used s.3 of HRA to allow s.41 of YJCEA to read as permitting the admission of evidence or questioning where it was considered necessary by the trial judge. The interpretation did a violence to the actual meaning but restored judicial discretion. In Re S (2002) the CA used s.3 of the HRA in such a way as to increase the power of the courts to intervene in the interest of the children taken into care under the Children Act (CA) 1989 by issuing interim orders. The House of Lord felt that the CA had exceeded it interpretation power under s.3 which led to the usurpation of the function of the parliament. In Re S (2002)


OTHER COUNTRIES
In the United States, the constitution of the United States ratified in 1789, provides the nations with a source of supreme and fundamental law. The American constitution comes out of revolution and war of independence. The courts defeated legislation by using the constitution to protect private citizens who were seeking to discriminate in ‘private contexts’ (for example, landlords refusing to let property to people on the grounds of race. Common law can be irrefutably linked to political struggles for social justice

The Canadian Charter of Rights and Freedoms guarantees the rights and freedom set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Charter is the emphasis of the latter on the ‘multicultural heritage of Canadians’ (section 27).

THE BILL OF RIGHTS OF SOUTH AFRICA (1996)
Constitution of South Africa adopted in 1996 is a document that reflects the political struggle that brought an end to apartheid. Common law and other inheritances from the British Political traditions have feed into the both the problems and solutions in South African politics