#17227 - Human Rights - GDL Constitutional and Administrative Law

Pre 1998 there were two domestic protections available:

• Courts: Constitutional rights in the common law

  • Protection through tort law

    • Entick v Carrington (1795) – tort of trespass.

    • Malone v MPC (1979) – no general right to privacy in English law.

  • Protection through statutory interpretation

    • Anisminic (1969) – ‘ouster clause

• Parliament: legislation conferring specific rights

Problems:

• Too weak

• Only protect in certain circumstances

• Focus on negative (formal) equality rather than substantive notions of rights

• Erratic judgements (Griffith)

The origin of ECHR:

• Adopted by MSs of Council of Europe in 1950.

• UK is dualist system of incorporation – although it had not incorporated into domestic legal system it was a signatory.

Admissible complaints must satisfy four criteria

• 1) Domestic remedies must be exhausted (Gone to the highest court possible in domestic resources).

• 2) Complaints not manifestly ill-founded

• 3) Time limit: within 6 months of domestic final decision

• 4) Matter not substantially the same as one previously examined by ECtHR

By 1990, out of 17,000 applications, fewer than 700 admitted.

Judicial movement:

• Malone v UK (1984) no domestic remedy available, but was found to have breached in ECtHR.

• In Birdi (1975) Lord Denning was willing to go as far as declaring an act of parliament invalid if it was inconsistent with the convention (the following year in Singh Denning recanted on this)

• Smith (1996)- Wednesbury unreasonableness should take into account interference with human rights

The Blair Government’s White Paper: ‘Rights Brought Home: The Human Rights Bill’

• Prior to 1990s UK had led Europe in ECHR violations. However it had an unparalleled record in following judgements of ECtHR (i.e. rectifying any problems).

• If incorporated domestically, people could bring challenges ‘without inordinate delay and cost’

  • Currently took 6-7+ years to take a case to the ECHR.

• ECHR rights to become part of UK jurisprudence: be far more subtly and powerfully woven into our law

• ECHR rights interpreted through UK law.

• British judges to contribute to ECHR jurisprudence.

• Reduce UK breaches of ECHR.

HRA 1998:

• Not intended to incorporate ECHR, rather intended to force readings of legislations to be read in such a way as to be compatible with ECHR.

Structure of HRA

• S.1 – Convention Rights

• S.2 – Interpretation of Convention rights: “must take into account”

• S.3 – Interpretation of legislation

• S.4 – Declaration of incompatibility

• S.6- Public Authorities: unlawful for a public authority to act in a way which is incompatible with a Convention right.

• S.10 – Remedial action – authorises Ministers to amend legislation to remove incompatibility

• S.19 – Statements of compatibility must be made by ministers on reading a bill Ministers - Even if it is incompatible, this does not affect validity once the provision is enacted

Schedule 1: Substantive Rights

• Three types:

  • Absolute Rights: e.g. Art 3: Prohibition of torture

  • Limited Right: e.g. Art 5: Right to liberty and security

    • … save in the following cases and in accordance with a procedure prescribed by law:

  • Qualified Right: e.g. Art 8: Right to respect for private and family life

    • …except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or

Incorporation:

• HRA not entrenched

• HRA can be expressly repealed by Parliament through simple majority vote

• What about implied repeal?

  • HRA = constitutional statute (Thoburn)

• Courts are not empowered to strike down primary legislation

• Compare with ECA 1972

  • This was an example of strong incorporation. Legislation is subordinate to EC Law, ECJ decision are binding and UK courts can disapply conflicting statutes (Factortame)

  • The HRA 1998 is weak incorporation: Legislation is merely construed in line with ECHR as far as possible, decisions are only persuasive and court cannot invalidate incompatible legislation.

Principles underlying ECtHR jurisprudence:

• Margin of Appreciation – ECHR is a subsidiary in protecting human rights. Domestic governments/courts are not only better placed but more knowledgeable on substantive local rights.

• Principle of Proportionality – Soering v UK (1989) 'Inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights.'

• Purposive Interpretation – Must interpret the ECHR by the current standards of society and not those prevailing at the time the ECHR was drafted.

• Prescription by Law – Certain articles in the ECHR require that interferences made by the state to the relevant rights must be 'prescribed by law'

The HRA 1998, s. 2(1) provides that UK courts and tribunals have an obligation to take Strasbourg case law ‘into account’ when determining questions that arise in connection with an ECHR right.

The Mirror Approach (Klug and Wildbore):

• Ullah v Special Adjudicator [2004] – attempted to rely on ECHR to prevent deportation to country with HR abuses.

  • Lord Bingham: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.”

• Home Secretary v AF [2009] – HoL followed Strasbourg’s decision in A v UK (2009) regarding withholding ‘closed evidence’ from terror suspect as a breach of right to fair trial.

  • This departed from previous case law (Home Secretary v MB [2007])

  • Lord Hoffman was reluctant: “A v UK requires these appeals to be allowed. I do so with very considerable regret, because I think that the decision of the ECHR was wrong”

Klug and Wildbore argue that UK has some scope for departure from the ‘straightjacket’ that is ECtHR jurisprudence

• First case where UK declined to follow ECtHR jurisprudence was R v Spear [2002]

• R v Horncastle [2009], Lord Phillips: “There will, however, be rare occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process”

• Pinnock [2011], Lord Neuberger: “This Court is not bound to follow every decision of the ECtHR…”

  • But where there is a ‘clear and consistent’ line of case law, which is not inconsistent with domestic law then “it would be wrong for this Court not to follow that line.”

• Lambeth LBC v Kay [2006] – lower UK courts must still adhere to the rules of precedent.

  • If a judge felt that a decision was inconsistent with Strasbourg authority, he had to follow the binding precedent from the superior domestic court but could give leave to appeal as appropriate.

A ‘Dialogue’?

• Animal Defenders International v UK [2013] – ECtHR seemed to be strongly influenced by the way in which this case was analysed in the UK domestic courts

  • Subsequently departed from the approach it had taken on a similar point in the earlier case of VgT v Switzerland [2001]

Does it enhance development if one court declares itself deferential?

• Lady Hale – if the English courts are merely a mirror it means we are less likely to engage in meaningful dialogue.

• If taken wholesale it is potentially obstructive to meaningful dialogue.

Politically: A mirror is a passive reflection – this is a politically sensitive image.

• Lawes LJ in Childrens Justice Alliance - it is symbolically difficult for the courts to embrace.

• He advocates instead a ‘municipal jurisprudence’

Provisions:

• S.3: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

• S.4: If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (‘DOI’)

The Extent of the Discretion:

• R v A (Complainant’s Sexual History) [2001] – D was charged with rape. He sought permission to introduce evidence of his past consensual sexual history with the complainant but was prevented from doing so by the application of the Youth Justice and Criminal Evidence Act 1999 s. 41.

  • Held that court had the power to interpret the 1999 Act such that evidence of a complainant’s previous sexual history is admissible where it is so relevant to the issue of consent that by not including it the fairness of the trial would be brought into question.

  • Lord Steyn: can do so even if there is no ambiguity in the statute, and the interpretation appears linguistically strained.

    • Based on white paper – Strasbourg should only be available in exceptional circumstances.

    • Proceed on the basis that the legislature would not if alerted to the problem have wished to deny the right to fair trial.

    • DOI should be avoided unless impossible to do so.

  • Lord Hope applied a narrower and more traditional construction

    • The rule is only a rule of interpretation. It does not entitle the judges to act as legislators… The compatibility is to be achieved only so far as this is possible.

• Re S and Re W (Care Orders) [2002] – CA undertook a radical interpretation of Children Act 1989 by introducing a starring system. This was struck down in the HoL, who restated that under separation of powers legislation was for Parliament alone.

• Ghaidan v Godin-Mendoza [2004] – ‘spouse’ in Rent Act 1977. Sch. 1 Para 2(2) defined a spouse as a ‘a person who was living with the original tenant as his or her wife or husband.’

  • Held 4-1 that their lordships could ‘...