Success Of Human Rights Act

The much heralded Human Rights Act 1998 came into force on the 2nd of October 2000, and at the time it was hoped that it might revolutionise the British approach to Civil Liberties, perhaps even providing something akin to a bill of rights. Over the past two and half years the judiciary have grappled with the act's scope and provisions and there is now a considerable body of case law through which its effectiveness can be judged.

The Human Rights Act and the European Convention on Human Rights

The Human Rights act 1998 is designed to protect the basic rights and freedoms contained within the European Convention on Human Rights (ECHR). These rights, such as freedom of speech, freedom of expression and the right to a fair trial, are known as the convention rights and prior to the implementation of the HRA1998 they not directly enforceable in British courts, and as such the judiciary had little power to award a remedy for their breach. Nevertheless, it ought to be borne in mind that the ECHR came into force in 1953, and is in many ways an outdated document that does not address more modern problems such as asylum and immigration.

How does the Act Protect the Convention Rights?

The two key provisions in the HRA1998 for the protection of the Convention rights are Sections 3 and 6. Section 3 requires all legislation, whenever it was enacted, to be interpreted, as far as possible, in a way that is compatible with the Convention rights. Section 6 makes it unlawful for a public authority to act in a way that is incompatible with a Convention right unless it is required to do so by primary legislation or inevitably incompatible secondary legislation. Moreover, Section 7 makes it possible for victims of a Human rights violation to rely on the convention in legal proceedings, or institute separate proceedings if they feel a right has been breached, and section 8 allows the courts to grant a remedy in such situations. Hilaire Barnett believes that the HRA1998 has created 3 new legal avenues in the UK's courts, firstly a challenge based on non compliance with Convention rights, secondly a new ground for judicial revue, and thirdly a defence against actions brought by public bodies against private individuals. However, important those these provisions are in theory it has been for the judiciary to decide how they are used, and therefore it has been case law which has determined how effective the act has become.

Section 6, what constitutes a public authority

Section 6 clearly states that it is to public authorities to whom the act applies and in s6(3) a partial definition is given of what might constitute a public authority. A public authority is either, 'a court or tribunal'1 or 'any person certain of whose functions are functions of a public nature' 2. However s6(5) makes it equally clear that a person is not a public authority if 'if the nature of [their] act is private.' For example Railtrack was deemed a public authority in terms of the safety and maintenance work that it was responsible for, but was also a private property developer 3, as such it has very much been up to the courts what constitutes a public authority. In R(Heather and Another)v Leonard Cheshire Foundation 4, the courts had to decide whether a Charity partly funded by their local authority under the National Assistance Act 1948, as amended, constituted a public authority. It was held that if the applicant could prove the local authority had breached one of the convention rights then an action could be pursued, however the charity could not be held liable using than the funding they were receiving their was no evidence that their work had a 'public flavour' to it.

If the judiciary wed themselves to the view that the act was only enforceable against public authorities then it would undoubtedly be of somewhat limited impact, having only vertical effect. However, in several cases the courts have taken the view that as public authorities themselves they are under an obligation to enforce convention rights 5, meaning that while the Act does not specifically allow for horizontal effect, that it is to say it does not explicitly provide an avenue for one private individual to take action against another, indirect horizontal action may be possible. Indeed during a debate Lord Irvine6 said the following:

' it is right as a matter of principle for the courts to have the duty of acting compatibly with the Convention not only in cases involving other public authorities but also in developing the common in deciding cases between individuals. Why should they not?'7

Section 3, 'so far as is possible'

S3 obliges public authorities to interpret all legislation in manner compatible with Convention rights, but not without the rider 'so far as is possible'. Moreover s3(2) states that incompatibility with a Convention right will not effect validity of incompatible primary legislation, nor will it effect the validity of incompatible secondary legislation, if primary legislation prevents the removal of incompatibility. On a strict interpretation of the section it would seem that the effectiveness of the HRA1998 has been severely hamstrung, but in fact the judiciary have done their utmost to interpret the section in a liberal manner.
In R v A (Complainant's Sexual History)8 guidelines were given on how to assess compatibility with the Convention rights. In each case it must be successfully established that the legislative provision has interfered with a convention right, if it has is then there are three questions which the court must consider; firstly was the legislative objective important enough to justify interference with fundamental rights, secondly were the measures adopted to meet the objective rationally connected to it, and finally was the method used to impair the right no more than was necessary to pursue the objective. This approach has been adopted from European Law and is often known as proportionality. In the case it was added that s3 goes further than requiring the court to take the convention rights into account, in fact the court has a positive duty to strive to find a possible interpretation compatible with convention rights, with Lord Steyn saying that this may even mean adopting 'an interpretation which may appear linguistically strained.'9 This approach was used in R(Daly) v Secretary of State for the Home Department 10, where proportionality was established as a substantive ground for judicial revue where a Convention right had been breached.11

S3 has also been in cases like R v Pyrah12 used to imply a right of appeal against the judgements of a court or tribunal, in situations where the judgement is based a upon a statutory provision which breaches a convention right.

There are limitations to the courts ability to interpret s3, for example the HRA1998 is not retrospective, and a remedy cannot be granted to a claimant who suffered a human rights abuse prior to its implementation. For example, Pearce v Governing Body of Mayfield School13 concerned a lesbian schoolteacher who was the subject of continued verbal abuse from the pupils based on her sexual orientation. On the Sex Discrimination Act 1975, which was the relevant provision at the time of the abuse, she was not entitled to compensation, whereas under the HRA1998 she would have been. However, despite the fact the case reached appeal in 2001 the court it was held that she was not entitled to compensation as the abuse has occurred during the 1990s and therefore the school board could not be liable under the HRA's provisions. In Wainwright and Another14 it was affirmed that there was no tort of privacy at common law 15, and although Article 8 of the convention entitles people to respect for his private and family life, his home and his correspondence, the HRA1998 could not introduce a retrospective right of privacy for a case that began in 1997. Similarly in Re W and B (Children: Care Plan), it was held that while the courts might adopt an interpretation of legislation that appears to be linguistically strained, it cannot go so far as to actively re-draft statutory provisions. Finally, it has been commented in a number of cases that the courts can challenge the validity of convictions made pre 2000 on the basis of the HRA1998 as if the legislature had intended the act to have such power then it would have stated so explicitly.

The HRA1998 and the Common Law

The HRA1998's must significant effect on the common law thus far has been in relation to an individual's right to privacy. As said above there is no general tort of privacy at common law, and any action brought in this regard, relies upon whether there has been a breach of a confidential relationship. However, the HR1998 has been used to introduce something akin to a tort of privacy. In Venable v News Group Newspapers, an injunction was granted to prevent the press from naming or identifying the whereabouts of an applicant for an indefinite period, this despite the fact that Article 10 of the Convention grants freedom of expression.

The Declaration of Incompatibility

If a piece of legislation is found to be incompatible with the Convention, then under section 4 higher courts16 have the power to grant a declaration of incompatibility. The courts approach to this provision has varied. In R (H) v Mental Health Review Tribunal17 the question raised was, whether requiring a mental health detainee patient to prove that they no longer suffered from suffered from their affliction before they were released18, contravened Article 6 of the convention, the right to a fair trial. It was held that it did, and in the case of Matthews v Ministry of Defence19 it was held that crowns immunity from any form of action by the members of the armed forces20 , was not rationally connected with the legislative aim being pursued, and was more than was reasonably necessary. In both cases a declaration of incompatibility was made. Contrastingly, in Alconbury21 it was held that giving the Secretary of State the final decision on planning applications did not contravene A6, as the mechanism of judicial review was available.

Even if a declaration of incompatibility is made it does not invalidate the relevant legislation it merely warns the government that reform is needed. If a declaration is made then the relevant government minister has the power to amend the legislation by Order in Council (a remedial order) under s10 of the HRA1998. This is a fast track procedure for the amendment of the legislation meaning that the necessary changes can be made in as little as 60 days. The same procedure can be used if the European Court on Human Rights declares a piece of UK legislation invalid. However, although this mechanism is available it is by no means compulsory.

Conclusions

The jury is still very much out on how effective the act has been and although their have been landmark cases on issues such as freedom from torture 22, the right to liberty 23, freedom of expression24 and many of the other Convention rights, it is clear from decisions such as Alconbury and Re W and B (Children: Care Plan), that the judiciary do not have a free reign to use the act to defend those rights in every situation. It is perhaps telling that Article 13 of the convention, which guaranteed a successful applicant an effective remedy, was left out of the HRA and instead s8 says that the courts should grant 'such relief or remedy… as it considers just and appropriate' in all the circumstances of the case. Perhaps the HRA is best thought of as conscience, public authorities and to some extent private individuals, are now required to be constantly aware of any potential human rights abuses, and to their credits the courts have done their outmost to interpret the act in a broad-minded manner. Indeed while the HRA may not have presented the legal system with the bang expected, it has certainly not disappeared with a whimper.

  1. s6(3)a HRA1998[^ Return]
  2. s6(3)b HRA1998[^ Return]
  3. H. Barnett, Constitutional and Administrative Law, p630[^ Return]
  4. [2002] EWCA Civ 366[^ Return]
  5. See Venables v News Group Newspapers 2001 (unreported)[^ Return]
  6. The then Lord Chancellor[^ Return]
  7. H. Barnett, Constitutional and Administrative Law, p633[^ Return]
  8. [2001] 3 All ER 1[^ Return]
  9. R v A (Complainant's Sexual History) [2001] 3 All ER 1[^ Return]
  10. [2001] UKHL 26[^ Return]
  11. The Traditional grounds for review Illegality, Irrationality and .., were given in the case of Wednesbury [^ Return]
  12. [2002] 4 All ER 1122[^ Return]
  13. [2001] IRLR 669 1[^ Return]
  14. Secretary of State for the Home Department v Wainwright and Another [2001] EWCA Civ 2081[^ Return]
  15. See Also Kaye v Robertson [1991] FSR 62.[^ Return]
  16. S4(3)b, Higher courts are those from the High court upwards.[^ Return]
  17. [2002] 5 CCLR[^ Return]
  18. Under the s73 Mental Health Act [^ Return]
  19. [2003] UKHL 4[^ Return]
  20. S10 Crown Proceedings Act 1947[^ Return]
  21. R(Alconbury Developments Ltd and others) v Secretary of State for Education, Transport and the Regions.[^ Return]
  22. Napier v The Scottish Ministers[^ Return]
  23. In re K (a Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 All ER 719[^ Return]
  24. R (Farrakhan) V Secretary of State for the Home Department [2002] 4 All ER 289[^ Return]

BIBLIOGRAPHY

Books

H. Barnett, Constitutional & Administrative Law 4th edition, Cavendish publishings, London 2002

Websites

http://www.lcd.gov.uk/hract/studyguide/index.htm#05

Cases

In re K (a Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 All ER 719

Matthews v Ministry of Defence [2003] UKHL 4

Napier v The Scottish Ministers

Kaye v Robertson [1991] FSR 62

Pearce v Governing Body of Mayfield School [2001] IRLR 669 1

R v A (Complainant's Sexual History) [2001] 3 All ER 1

R(Alconbury Developments Ltd and others) v Secretary of State for Education, Transport and the Regions.

R(Daly) v Secretary of State for the Home Department [2001] UKHL 26

R (Farrakhan) V Secretary of State for the Home Department [2002] 4 All ER 289

R (H) v Mental Health Review Tribunal [2002] 5 CCLR

R(Heather and Another)v Leonard Cheshire Foundation [2002] EWCA Civ 366

R v Pyrah [2002] 4 All ER 1122

Secretary of State for the Home Department v Wainwright and Another [2001] EWCA Civ 2081

Venables v News Group Newspapers 2001 (unreported)

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