#3116 - Human Rights Act 1998 - GDL Constitutional and Administrative Law

Introduction – Background and Objectives

- HRA 1998: incorporates provisions of European Convention on Human Rights into UK law.

• positive legal rights enforceable in UK courts.

  • cf. pre-HRA: common law rights defined negatively – [Dicey]: all not unlawful allowed.

• UK courts bound: must interpret law consistently with Convention rights + grant remedies for breach.

  • cf. pre-HRA: UK signatory to ECHR (since 1950), but no domestic force.

    • no domestic remedies: individuals had to go to ECtHR in Strasbourg (1966: right of petition) – embarrassing: ‘washing of the UK’s dirty linen in public’.

  • [Jack Straw]: most significant statement of human rights since 1689 Bill of Rights … enables people ‘to challenge more easily the actions of the state’ if below standards of ECHR.

• long debate re: incorporation.

  • 1968: [Ld Lester] Fabian Society pamphlet Democracy and Individual Rights.

  • 1993: [Ld Bingham MR] argued in favour of incorporating ECHR – rationale: increasing power of executive; ECHR gave citizens better protection than common law.

  • 1997: Labour Party manifesto pledge – ‘Bringing Rights Home’.

• rationale – 1997 White Paper:

  • 1. allow individuals to argue for rights more easily.

  • 2. weave rights more powerfully into UK law by bringing them under UK jurisprudence.

    • UK had been worst violator of HR (but did follow ECtHR judgments).

- HRA provisions.

• s1 HRA: incorporates ECHR into UK law (cf. ECA 1972: incorporating EC law).

  • Schedule 1 HRA: sets out relevant rights + freedoms.

    • NOT Art 13 ECHR: ‘providing adequate remedies’ effective remedy provided by s8 HRA.

    • Arts 1-3 First Protocol: included, subject to reservation.

    • Arts 1-2 Sixth Protocol: included.

• s2 HRA: courts/tribunals must take ECHR case law into account when deciding cases.

• s3 HRA: courts/tribunals must interpret domestic law in line with ECHR rights so far as possible.

• s4 HRA: declaration of incompatibility if interpretation impossible (but not binding).

• s5 HRA: right of Crown to intervene – govt. can be party to/appeal against DOI.

• s6 HRA: acts of ‘public authorities’ must be compatible with ECHR.

• s7 HRA: proceedings – locus standi: victims of unlawful act of public authority.

• s8 HRA: remedies.

• s10 HRA: power to take remedial action in response to DOI.

• s12 HRA: freedom of expression.

• ss14-17 HRA: derogations + reservations.

• s 19 HRA: statements of compatibility for new bills.

Main Provisions of the Human Rights Act

- New obligations under HRA 1998 – transform UK law:

• 1. determining legal questions: courts must take ECHR case law into account – s2 HRA.

• 2. interpreting legislation: read + effected in way compatible with ECHR right so far as possible – s3 HRA; declarations of incompatibility – s4 HRA.

• 3. conduct of ‘public authorities’: (inc. courts) must be compatible with ECHR rights – s6 HRA.

1. Interpretation of legal questions – s2 HRA.

- s2(1) HRA: UK courts must take ECtHR case law into account in determining questions re: ECHR right.

- Debate: how much ‘margin of appreciation’ left to UK courts?

• ‘mirror approach’: UK courts should follow Strasbourg interpretation.

  • R (on app. of Ullah) v Special Adjudicator [2004]: [Ld Bingham]: domestic courts should keep pace with Strasbourg jurisprudence – so meaning uniform across states (ECHR international, only authoritative interpretation from Strasbourg).

  • Re McCaughey [2011]: Art 2 obligation to investigate deaths occurring before HRA came into force applied.

• vs. less deferential

  • [Klug and WIldbore]: mirror approach wrong – UK courts have some scope for departure from ECHR jurisprudence, should be less deferential to Strasbourg.

  • R v Horncastle [2009]: SC: not bound by ECtHR precedent, s2 HRA: only ‘take account’.

    • ECtHR not followed: SC allowed convictions based on hearsay evidence; vs ECtHR interpretation of Art 6(3)(d) ECHR right to cross-examine prosecution witnesses.

    • [Ld Phillips]: Art 6(3)(2) unnecessary – safeguards in place in UK law re: hearsay.

  • Re P [2008]: [Ld Hope]: Strasbourg jurisprudence not a ‘straightjacket’.

  • Lambeth LBC v Kay and Others [2006]: HoL: UK courts must adhere to rules of precedent – judge must follow binding domestic authority even if inconsistent with Strasbourg, but could give leave to appeal.

2. Interpretation of legislation – s3 HRA + s4 HRA (DOI)

- s3(1) HRA: primary + subordinate legislation must be read + given effect in way compatible with Convention rights, ‘so far as possible’.

• s21 HRA: definition of ‘primary’ + ‘subordinate’ legislation.

- Debate on scope of s3: R v A (Complainant’s Sexual History) (No. 2) [2001].

• facts: s41 Youth Justice and Criminal Evidence Act 1999 limited admissibility of ev. re: complainant’s sexual history in sexual offences trials interfered with Art 6 ECHR right to fair trial for defendant.

• [Ld Steyn] (majority view): ‘wide’ interpretative approach – even where law ‘linguistically strained’ avoid s4 DOI.

• [Ld Hope]: restrictive use of s3 – not where expressly/implicitly contradicted preferred s4 DOI.

  • rationale: plain intention of Parliament a ‘brake’ on s3 interpretation; s4 DOI should be used to avoid straining meaning; courts should avoid law-making.

- Current approach to s3: wide interpretive approach taken, but limited.

• Re S (Children) and Re W (Care Orders) [2002]: courts less willing to use s3 for major changes with far reaching consequences.

  • facts: CoA radical re-interpretation of Children Act 1989 HoL: reversed – s4 DOI.

  • [Ld Nicholls]: courts can only interpret, not amend – ‘meaning which departs substantially from a fundamental feature of an Act is likely to have crossed the boundary between interpretation + amendment, esp. where departure has important practical repercussions’.

• Bellinger v Bellinger [2003]: courts again refuse to make significant change.

  • facts: legality of marriage between man + transgender woman (birth certificate: man) technically not recognised under UK law court refused to use s3 to reinterpret Matrimonial Causes Act 1973 (to make woman = inc. transgender woman), issued s4 DOI instead.

  • rationale: judges cannot decide when gender changed; judges should not alter sanctity of marriage (for Parliament); reinterpretation would have wider effect on other acts.

• Ghaidan v Godin-Mendoza [2004]: contextual/purposive approach taken s3 used.

  • facts: 2 gay men living together, 1 (mentioned on lease) died survivor seeking right to stay in home under Rent Act 1977 (for those ‘living as husband + wife’) s3 used: inc. gay couples.

  • rationale: purposive approach – intention of Act to protect survivor of couple, continuity etc; no major repercussions: interpretation confined to 1 Act.

• R (on app. of Wilkinson) v IRC [2005]: purposive approach preferred but limited.

  • facts: widow’s bereavement allowance not available to widower under s262 Income and Corporation Taxes Act 1988 breach, but IRC could not have acted differently (s 6(2) HRA: bound to follow legislation).

  • [Ld Hoffman]: s3: strong presumption that Parliament intended to legislate in accordance with ECHR rights, but: should not take acontextual meanings (‘play games with words’).

• A v P [2011]: purposive/contextual approach taken again s3 used.

  • facts: mother kidnapped her child from Poland – issue: what was ‘habitual residence’ of child interpreted widely: where child domiciled + wishes of father taken into account.

- s4 HRA: declaration of incompatibility – where law cannot be interpreted in accordance with rights.

• rationale: [Loveland]: courts do not have to deploy strained interpretations prevent accusation of ‘usurping the legislative function’ (as Denning accused).

• scope: s4(2): primary legislation; s4(4): secondary legislation (if primary legislation prevents fix).

• only High Court + above: s4(5).

• but limited solution: s4(6) – DOI not binding + does not invalidate law.

• s5(1): right of Crown to intervene – minister can be joined as a party to explain legislation.

- s4 HRA declarations of incompatibility – examples.

• Bellinger v Bellinger: HoL – s11(3) Matrimonial Causes Act made no provision for transgender incompatible with Arts 8 + 12 ECHR.

• A and Others v SoS for the Home Dept. [2004]: HoL – s23 Anti-Terrorism, Crime and Security Act 2001 disproportionate + permitted detention without charge incompatible with Arts 5 + 14 ECHR.

• R (on app. of Anderson) v SoS for the Home Dept [2002]: HoL – s29 Crime (Sentences Act) 1997 left decision on life sentence tariffs to Home Sec incompatible with Art 6(1) ECHR.

• public authority can appeal: e.g. R (on app. of H) v SoS for Health [2005]: s2 Mental Health Act 1983 put burden on patient for disproving insanity CoA: DOI with Art 5(4) ECHR HoL: overturned.

- s10 HRA: remedial action (fast track) in response to declaration of incompatibility.

• Parliament can decide to amend legislation: Parliamentary Sovereignty – courts cannot compel.

  • [Ld Irvine]: ‘prompt parliamentary remedy’ needed to respond to DOI.

• s10(2): ministers may take remedial action to amend legislation to remove incompatibility.

• Schedule 2 HRA: 2 procedures set out.

  • standard procedure: draft amending order presented 60 days before approval by Parliament.

  • remedial procedure (para 4, Sch. 2 HRA): urgent action – order approved by Parliament after made.

• e.g. R (H) v London North and East Mental Health Review Tribunal [2001].

  • CoA: s2 Mental Health Act 1983 (burden of proof on patient) incompatible with Art 5(4) ECHR.

  • response: SoS for Health acting under s10 remedial order amending s2.

3. Conduct of public authorities – s6 HRA.

- s6(1) HRA: unlawful for a public authority to act in a way which is...