- Read The Human Rights Act
- Read the incorporated Rights
- Read the European Convention on Human Rights
- Read A bluffer’s guide to human rights courts (10 Sep 2012)
- Read Adam Wagner’s brief guide to journalists (10 Feb 2013)
- Read A cut out and keep guide to judicial review (1 Mar 2011)
- Read the invention of human rights (25 Aug 2010)
The Human Rights Act 1998 has been in force since October 2000. It incorporates into domestic law the rights and liberties enshrined in the European Convention on Human Rights, a treaty to which the United Kingdom is signatory but which until 2000 had no application in domestic law.
Since the coalition party came into power there has been an increasingly vociferous debate about the continuation of the HRA in its present form. Proposals have been put forward to replace it with a “modern British bill of rights” and even more radical action has been suggested vis a vis this country’s relationship with the European Court of Human rights.
The European Convention on Human Rights
When The European Convention on Human Rights was signed in 1951 the view was that the system should protect against only very serious human rights infringements. Many people maintain the Convention was never intended to become what it has today, its Court “sometimes acting like a type of Supreme Court for Europe in the field of human rights” (see “What was the point of the European Convention on Human Rights).
Whether one agrees or not with the way it has developed, the bottom line is that the Convention guarantees a range of political rights and freedoms of the individual against interference by the State. Signatory States to the Convention may not violate the right to life of their citizens, subject them to torture, inhuman or degrading treatment, press them into enforced labour, deprive them of their liberty without due process and compensation, deprive them of access to justice or a fair trial or introduce laws that impose retrospective criminal liability for acts that were innocent at the time they were committed. Individuals’ rights to privacy, freedom of religion, expression, association and assembly, to marry and found a family, may not be infringed without proper justification. The rights enshrined in the Convention must be guaranteed to each individual irrespective of sex or race and a range of other grounds. Because some of the rights oblige the State to respect the interests of citizens, this sometimes has the effect of enabling individuals to claim Convention rights in relation to each other, and the State, via its courts and legislation, is bound to secure compliance with those rights.
Before the incorporation of the Convention, individuals in the United Kingdom could only complain of unlawful interference with their Convention rights by lodging a petition with the European Commission of Human Rights in Strasbourg, which itself only referred the case to the European Court of Human Rights for a full hearing if it considered that the complainant had exhausted all his or her local remedies and that a range of other admissibility criteria had been satisfied. This process took on average five years, from the lodging of a petition to the publication of the Court’s judgment.
Because the Strasbourg Court is currently struggling under a huge backlog of cases, proposals for its reform have been put forward that would remove the right of individual petition in favour of a referral system analogous to the one operated by the European Court of Justice. It is unlikely however that such a radical reform will prove acceptable.
Primary legislation, secondary legislation and the common law can be made the subject of an action under the Act, in addition to decisions and actions of public authorities.
There are limitations. Secondary legislation is subject to the rights set out in the Convention (s.3) but such legislation may be protected from challenge if the primary legislation under which it was made prevents it from being interpreted in a way that is compatible with Convention rights.
If the court is unable to construe a statute in accordance with the Convention it has no power to set it aside. However, it can issue a declaration under s.4 of the Act that the relevant statutory provision is incompatible with the rights set out in the Convention. There is no specific procedure for applying for a declaration of incompatibility, although Civil Procedure Rule 19.4A provides that a court may not make a declaration of incompatibility unless certain notice provisions have been fulfilled. In general the process is analogous to that used for declaration by originating summons. Such a declaration imposes no obligation on Ministers to respond but the Act provides in s.10 for a remedial order to be made whereby the minister may introduce a statutory instrument to amend or repeal the offending provision. There is a “fast track” procedure of 40 days during which the proposed statutory instrument is laid before both Houses of Parliament before passing into law.
Section 6 makes it unlawful for all public authorities to act in a way which is incompatible with the rights in the Convention. “An act” includes the failure to act but does not include a failure to introduce legislation or make a remedial order pursuant to a declaration of incompatibility.
In principle, the Act is only vertically effective, direct challenges may only be made to the actions of “public authorities”. However “public authority” is widely defined in s.6 to include central and local government, the courts, the police, immigration officers and “any person certain of whose functions are functions of a public nature”. A privatised utility such as Railtrack, for example, will be carrying out functions of a public nature in its role of regulating the railways and ensuring safety standards and in that capacity will be liable under the Act, whereas in its capacity as employer, it may not be liable. The dividing line between public and private functions is constantly being tested in the courts, as it has to be decided on a case by case basis. Both Houses of Parliament are excluded from the definition of public authority, a provision that was designed to exclude Acts of Parliament from direct attack under the incorporated Convention.
Although the Convention only applies directly to disputes between individuals and public authorities, the obligations it imposes on the State does colour the outcome of disputes between private parties. This is because “courts” are included in the definition of public authorities. Since it is unlawful under the Act for such public authorities to act in a way which is incompatible with the rights under the Convention, courts are under increasing pressure to interpret the common law in accordance with the Convention even in the determination of private disputes.
In addition, courts are bound by s.3 of the Act to construe primary and subordinate legislation in a way which is compatible with Convention rights. Even though the common law is not specified in this section, a judge adjudicating a dispute between private parties is often urged to interpret a rule of common law in accordance with Convention rights. The limitation of liability under the Act to “public authorities” does, however, mean that private parties are generally not able to take proceedings against each other on Convention grounds alone.
The inclusion of courts in the definition of public authority means that individuals are sometimes able to rely on Convention grounds in judicial review proceedings against the lower courts, such as magistrates’ courts and the immigration appeals tribunal. The decisions of the higher courts which cannot be judicially reviewed may be appealed on Convention grounds. However, it should be borne in mind that s.9 of the Human Rights Act 1998 provides that Convention challenges may not be brought in defiance of any rule of law which prevents a judicial decision being the object of judicial review.
A court or tribunal deciding a question in respect of a Convention right must take account of “relevant judgments, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe” (Section 2(1) of the Human Rights Act). This means that Strasbourg jurisprudence will be influential, although not binding, on national courts.
The anomolous situation is that although the rulings of the Court do not bind our own judiciary they create international law obligations for the government. As Adam Wagner has pointed out, by virtue of article 46 of the European Convention on Human Rights, the government must “abide by”, that is, it must follow, final decisions of the European Court of Human Rights.
The situation becomes more bizarre still, as the UK supreme court (along with all other courts) need only “take into account” judgments of the Strasbourg court. So the supreme court, which is subordinate to parliament in every other way, can do what parliament by its own choice cannot: namely, ignore decisions of the European Court of Human Rights. So the Strasbourg Court’s rulings on the legitimacy of any particular infringement will have an impact on the way domestic courts will approach the question. Strasbourg judgements provide non-binding guidance on the tests of necessity and proportionality, which means that any given limitation should achieve its aim without excessive impact on the rights of the individual.