The human rights act 1998 has had a profound impact on the way in which civil liberties and human rights are protected in england and wales

This essay shall endeavour to critically evaluate the statement that ‘the Human Rights Act 1998 has had a profound impact on the way in which civil liberties and human rights are protected in England and Wales’.

The Human Rights Act 1998 (henceforth referred to as ‘the Act’) is a highly significant piece of legislation which entered into force on 2nd October 2000. It incorporates into UK law the various rights and freedoms contained within the European Convention on Human Rights and secures a wide range of civil rights and freedoms of the individual against interference by the State. The result of this is that an individual is now able to seek legal redress in a court in England or Wales. Prior to the passing of this Act, the only method by which a UK individual could enforce the Convention rights was to petition to the European Court of Human Rights in Strasbourg – an often lengthy process. Yet under the Act, any UK citizen is now able to enforce their rights in the domestic courts of England and Wales. A limitation occurs where UK law conflicts with the Convention; in such circumstances, the individual will be obliged to make the application to Strasbourg, as was required prior to the passing of the Act.

The Act applies to public authorities, along with those bodies carrying out public functions, and provides that they must act in a manner which is compatible with the Convention . If an individual feels that this Convention right has been breached by such a public authority, he may be entitled to challenge this by the process of judicial review .

Under Article 2 of the Convention (and implemented by the Act), everyone’s right to life shall be protected by law. This means that no citizen shall be deprived of his life intentionally, except in the situation where death results from the sentence of a court in adherence to the law. Examples of situations in which Article 2 issues may arise are those in relation to: a) hospitals: hospitals are under a duty to take positive steps to secure a patient’s right to life (and justifying the refusal of life-saving treatment to a patient raises this issue, as well as potential issues under Article 3); b) unborn children: under current UK law, an unborn foetus has no personality and hence no separate legal rights from its mother (and therefore arguments may arise under Article 2 that a foetus should henceforth be protected); c) death threats: issues under this Article may arise where an individual is receiving death threats (it may be argued that the government has an obligation to ensure sufficient protection for him); and d) the right to die: the courts ruled in the case of Diane Pretty that Article 2 cannot be relied upon to ensure the right to die.

Article 3 provides the right of protection from torture, inhuman or degrading treatment or punishment. Articles 2 and 3 provide for no exceptional circumstances in which a public body can interfere and are hence referred to as ‘absolute’ rights.

Article 5 refers to the liberty of an individual and provides that every individual has the right to liberty and security of their person. There are exceptional circumstances in which liberty may lawfully be taken away; an example being the lawful detention of persons of unsound mind. The case of Winterwerp v The Netherlands laid down the following conditions for the purpose of determining ‘unsound mind:
1) the disorder must have been objectively established by medical expertise;
2) the severity of the disorder must be sufficiently extreme to justify the detention;
3) a tribunal must periodically review the situation; and
4) the person need not be receiving treatment during the detention; however, according to the case of Aerts v Belgium , the detention must relate to its specific purpose and hence it may prove difficult to justify hospital detention, should ‘treatment’ not be available.
An individual cannot, in any event, be deprived of his liberty without due process and compensation.

A further right arises under Article 6, relating to access to justice and a fair trial; this provides that ‘in determination of his civil rights and obligations or of any criminal charge against him, every individual has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. This right may not apply in exceptional circumstances (e.g. in times of war or public emergency) and mental health review tribunals have been known to be excluded from this definition. Under this right, those individuals charged with a criminal offence shall be presumed innocent until proven guilty; they must be informed promptly, with detail of the circumstances upon being charged; they must have adequate time and facilities to prepare a defence, along with having access to legal representation should they so require it; and they must have the right to speak and examine any witnesses, with the aid of an interpreter should a potential language barrier raise difficulties. Each case must be judged on individual merit, which, despite allowing for the advantage of flexibility, has led to apparently contradictory decisions. For example, in Saunders v UK , the court ruled that the individual should not be made to incriminate himself, and yet there also exists a statutory requirement to provide information in certain circumstances which is regarded as being compatible with the Act, in the interests of public protection (even though this resulted in self-incrimination).
A further point to note under this Article is that, unless the above derogations apply, retrospective laws cannot be introduced which result in the criminal liability of an individual for acts which did not so impose liability at the time of their commission.

Article 8 grants every individual with the right to respect for their private and family life. There are only limited circumstances in which a public authority may lawfully interfere with this right; these include the grounds of national security, public safety, the prevention of disorder or crime or for the protection of ‘health and morals’. Wide interpretation has been given in relation to the exercise of this right; a balance of the interests of a democratic society must be weighed against the rights of each individual.

Freedom of thought, conscience and religion is granted by Article 9. Similar limitations exist as for those relating to Article 8.

Each individual is given freedom of thought of expression under Article 10. This includes the freedom to hold opinions and receive/disclose information without interference by any public authority. Once again, the above exceptions relating to Article 8 and 9 also apply here.

Article 14 relates to discrimination. It provides that the specific rights and freedoms contained within the Convention must not be affected by discrimination on a range of grounds (including that of sex, race, colour, language and religion). This Article will therefore only be relevant in relation to a claim that another Article has been breached and does not stand alone as a right per se.

As mentioned previously, the Act has established the Convention as part of national law. The rights and freedoms that it secures provide citizens with a range of positive entitlements to asset in the course of a dispute with any public authority. Litigants will not have to prove to the court that a disputed decision was so irrational that no rational public authority could have taken it ; this is known as the ‘Wednesbury unreasonableness’ test. Provided that a litigant can show that he was personally affected by the action of decision of the public body, it is sufficient to simply establish a breach of a Convention right which, according to the court, was infringed without lawful justification.

If the court is not able to interpret a statute in accordance with the Convention, it has no inherent power to set it aside. It may, however, issue a ‘declaration of incompatibility’; this is a declaration that the relevant statutory provision is incompatible with those rights and freedoms laid down by the Convention.

Any court or tribunal, in deciding a matter relating to a Convention right, must take into consideration previously established precedents, be they judgements, 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. Hence, such precedents will be highly influential, albeit not binding, on national courts in England and Wales.

One of the main aims of the Act has been to establish a culture of rights and freedoms arising from a shared recognition of what is inherently right and wrong. A major change resulting from the passing of this Act is that, whereas previously, a national court would only look to the Convention for guidance in exceptional circumstances, it is now an obligation of national courts to respect and secure for nationals the rights established in the Convention.

It is also to be hoped that, as an indirect result of the Act, an increased level of confidence by nationals in public bodies and authorities will be seen. Such shared and agreed fundamental values in relation to human rights will be certain to promote a greater unity amongst society since such rights must, henceforth, be a part of all policy making.

 

Bibliography:

Textbook on International Human Rights – Rhona K. M. Smith; Oxford University Press; (2003)

Adnan v Newnham LBC (2002) 1 All ER 931
Christine Goodwin v United Kingdom (11/07/02)
Re Crawley Green Road Cemetry, Luton (2001) Fam 308
Begum v Tower Hamlets LBC (2002) EWCA Civ 239
Douglas v Hello Ltd (2001) QB 967
Edwards v UK (1993) 15 EHRR 417
Khan v United Kingdom (2001) 31 EHRR 45
NHS Trust A v M; NHS Trust b v H (2001) Fam 348
Parochial Church Council of Aston v Wallbank (2002) Ch51
Poplar Housing and Regeneration v Donoghue (2002) QB 48
R v Home Office, ex p Margaret Wright and Moira Bennett (2002) HRLR 1
R v Secretary of State for the Home Department, ex p Jean Middleton (2002) 3 WLR 505
R v Shayler (2002) 2 WLR 754
R (Daly) v Secretary of State for the Home Department (2001) 2 AC 532
R (H) v Mental Health Tribunal North and East London Region (2002) QB 1 (CA)
R (Mahmood) v Secretary of State for the Home Department (2001) 1 WLR (840)
Smith and Grady v UK (2000) 29 EHRR 493
Z v United Kingdom (2001) 34 EHRR 97

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