The Human Rights Act 1998

The Human Rights Act 1998 is, and is not, equivalent in law to an entrenched constitutional Bill of Rights. - Justin Santiago

The Human Rights Act 1998 (HRA 1998) attempts to provide some fundamental guarantee of individual rights and freedoms but this does not come close to a constitutional Bill of Rights due to the inherent characteristics of parliamentary sovereignty and the fact the European Convention of Human Rights (ECHR) which is incorporated by the HRA 1998 may be out of date.The European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms.

The HRA 1998 attempts to reconcile UK law with the ECHR which has been recognised as a de facto Bill of Rights among members of the EU. However the ECHR has limited effect in the UK and the HRA 1998 falls short of an entrenched constitutional Bill of Rights.

Not all articles of the ECHR have been incorporated. Of notable exclusion are Articles 1 and 13. The significant exclusions are Articles 1 which imposes a duty on signatory states to ensure that those within their jurisdiction can enjoy the rights and freedoms guaranteed by the Convention. Its exclusion would effectively remove the protective blanket covering all the rights afforded by the ECHR. Another significant exclusion is Article 13 which guarantees citizens whose fundamental rights are violated an effective remedy before a national authority. Thus the UK Parliament is excluded - effectively protecting parliamentary sovereignty but not citizen sovereignty.

While Articles 2,3,4,7 and 14 provide absolute rights the rest are subject to legal restrictions such as are necessary in the interest of national security or public safety. Article 15 of the ECHR allows domestic legislation to derogate from Articles 5,8,9,10,11and 14 of the ECHR in in time of war or other public emergency threatening the life and security of the nation. This power to derogate can be abused at the expense of the rights of the citizen.

The UK entered into such a derogation in relation to the Terrorism Act 2000 which enhanced police powers and allowed wider stop and search powers and the power to detail suspects after arrest for up to 28 days without trial as well as the Anti-terrorism, Crime and Security Act 2001 which allows for the detention without trial of foreign citizens suspected of being involved in terrorist activity and grants the Home Secretary the power to deport or detain indefinitely any non-citizen he “reasonably believes” to be an international terrorist.

Case law however has however limited these powers of derogation. In the case of A and others v Secretary of State for the Home Department and X and another v Secretary of State for the Home Department it was decided by the House of Lords that section 23 of ACTSA 2001 was incompatible with Articles 5 which is the right to liberty and Article 14 which is freedom from discrimination because the section permitted the detention of suspected international terrorists that discriminated against them on grounds of nationality. The courts viewed that there was no sense of proportion attached to the rights of the individual as opposed to the level of threat to national security for there to be a derogation.
However Derdre M. Dwyer in her article "Rights Brought Home" argues that the effect was only political and not legal. The Act remained and could not be declared invalid. The most that could be done was to enact further legislation as happened in the case of Bellinger v Bellinger where the Gender Recognition Act 2004 and the Civil Partnership Act 2004 was legislated to cater to the declaration of incompatibility of section 11c of the Matrimonial Causes Act 1973 which went against the right to a family for single sex couples.

An example of a fundamental guarantee is Article 6 of the ECHR which has been - the right to right to be heard by an unbiased tribunal the right to have notice of charges of misconduct and the right to be heard beard in answer to these charges.
However in Fiscal v Brown it was decided that the right to a fair trial under Article 6 would not overwhelm the requirement of local traffic legislation on the basis that the rights of individuals had to give way to the wider interests of the community. In the case of Venables v Thompson v Newsgroup Newspapers that the courts would only apply the Convention in exceptional cases where it was strictly necessary. In the case of Campbell (Naomi) v Mirror Group Newspapers, the courts would look into the balancing of competing interests whether the right to privacy under Article 8 outweighed the freedom of expression under Article 10.

The dualist approach to incorporating the ECHR into UK domestic law through the HRA1998 has whittled down the effects of the ECHR. Because the ECHR is not entrenched into domestic law a provision of the Convention can be breached with impunity. The HRA 1998 is still an Act of Parliament and not an entrenched Bill of Rights and can be repealed by a future Act of Parliament.

Section 2 of the Act required future courts to take into account any previous decision of the ECtHR. The operative phrase here is ‘take into account’ which does not mean that they are bound by it. Judicial decisions will continue to be made in light of judicial decisions made by UK courts regardless of decisions outside the UK. The decision in the case of Harrow LBC v Qazi was incompatible with the decision of the ECtHR case of Connors v UK. In the case of Price v Leeds City Council, the Court of Appeal held that where there were contradictory rulings from the House of Lords and the ECtHR, UK courts were required to follow the ruling of the House of Lords.

Section 3 of the Act requires all legislation to be read, so far as possible, to give effect to the rights provided under the ECHR and Section. According to Section 4courts may make a declaration of incompatibility if it finds that a provision in a UK statute is incompatible with a convention right. Taken together the impact of Section 3 and 4 would mean that the courts were able to protect individuals sufficiently. However this has been curtailed by parliamentary sovereignty and the courts are loath to go against Parliament.

The courts have interpreted the phrase ‘so far as possible’ narrowly and will only go so far in giving effect to rights. In deciding on the legality of any derogation, courts are required not just to be convinced that there is a need for the derogation but they must also be sure that the State’s action has been proportionate to the need.

Section 6 requires that public authorities act lawfully in a way that is compatible with the ECHR. Although some bodies are clearly public authorities such as government departments, local authorities, the police and the Inland Revenue the Act does not define public authority and quasi public authorities can fall outside this gambit : Donoghue v Poplar Housing and Regeneration Community Association Ltd limiting the action one could take against a body which was clearly not a public authority.

It is not mandatory that an Act of Parliament needs to be compatible with ECHR rights. Section 19 of the HRA 1998 allows for a minister responsible for the passage of a Bill through Parliament to make a statement that the bill does not comply with ECHR rights. Alternatively by virtue of Section 10 a Minister could subsequently amend an offending legislation by a fast-track procedure which avoids the full parliamentary process.

The ECHR is over 50 years old and there are a number of anachronisms present in particular the right under Article 5(1)(e) to imprison vagrants, alcoholics and those likely to spread infectious diseases. There are also certain rights such as the right to freedom of expression which are qualified by a number of exceptions primarily tailored to the interests of state institutions. The absence of certain rights such as no specific rights for children is notable.

The UK with its unwritten constitution will continue to depend on a regime of residual rights where both citizens and government are allowed any action not expressly forbidden. Additionally parliamentary sovereignty will not allow for other legislation to supercede acts of Parliament and this includes the ECHR. Judicial precedent does not include decisions other than those of domestic courts and judges tend to interpret laws narrowly.