#3583 - Human Rights Act 1998 - Constitutional Law

The Pre-HRA situation:

• Although there were notions of rights, they were not written down or given legal basis as ‘human rights’ in any context. Certain rights were laid down in statute, and these remain unchanged by the HRA.

• Aside from these, the UK was centred more around a rights-based that liberties-based model of freedom; we had the right to do something in so far as we were not prohibited from it. This was deemed unsatisfactory by many, including Lord Chancellor Lord Irvine who said: “The view that because we have liberty we have no need of human rights must be rejected.”.

• The liberties model can be criticised because it allows the erosion of rights, drawing no boundary with regards to where the law may not intervene. The HRA was enacted to protect civil liberties, and to give domestic footing to the rights contained within the ECHR.

• It is important to note that the HRA does not itself list any rights, rather it gives British voice to the European rights. The ECHR existed before the HRA, but to receive any sort of redress a claim would have to be made in the European Court of Human Rights – under the HRA such claims can be made in British courts instead.

• Note that the HRA is enforceable against bodies exercising a public function (see below), and horizontally where there was a pre-existing legal relationship (Ghaidan v Godin-Mendoza). It may also be enforceable where there was a pre-existing common law right, but this is not hugely relevant because the common law right continues to exist (Campbell v MGN).

  • Theorists have offered interesting approaches to the enforceability of the HRA:

    • Buxton says there can be no horizontal effect. This seems fair.

    • Wade says that provisions are entirely horizontally effective because the courts are public authorities, so their rulings have to be constituent with convention rights. This is a less plausible explanation.

    • Hunt says s.6 only applies to law that were on the books before the HRA because all other law should be compatible by virtue of the declaration of compatibility required for new legislation.

    • Phillipson decribes convention rights, in the private sphere, as values rather than entitlements.

Section 1

• Section 1 states that the HRA gives voice convention rights.

Section 2

• Says that British courts should keep in line with the Strasbourg court’s jurisprudence as far as the interpretation and allowance of rights is concerned.

• There has been debate as to whether we are obliged to follow exactly what Strasbourg says and does. Certainly our courts remain independent, but the conclusion reached seems to be that we should remain as in line with Strasbourg as possible. This is affirmed in Ullah, and Lady Hale said “our task is to keep pace with Strasbourg jurisprudence as it develops over time, no more and no less”.

  • Wright believes that the courts are not bound by Strasbourg, but that they shouldn’t become domestic legislators.

  • Amos argues much more strongly for firmer established domestic rights.

Section 6

• Establishes that public authorities are bound by the HRA. There has been some debate and case law on this matter. It is acknowledged that while some authorities exercise entirely public functions (known as core authorities), others are only exercising public functions in certain aspects of their business (known as hybrid authorities). The former are bound by the HRA in everything they do. The latter are bound in the matters which are considered to be ‘exercising a public function’ (s.6(3)(b)).

• Aston Cantlow establishes a definition for public authorities as being/doing any of the following: ‘publicly funded, exercising statutory power, taking the place of central or local government, or providing a public service’.

• Note that it is not uncommon for government/local authorities to contract out the performance of some of their duties. The leading case on this is YL v Birmingham City Council – P claimed that D had failed to perform his public duty of providing care for him, after the care provided by a company that the work had been contracted to was sub-standard. The court found that the council could not be liable – the public function was to arrange for the care, the actual provision of the care was done by a private company and was not subjected to the HRA. Generally there is no liability on contractors exercising what may seem a public function.

Section 3 – the interpretative obligation

• “so far as possible primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights”

• It was noted by Lord Bingham in A that interpretations may be linguistically strained, as s.4 declarations of compatibility should be seen as a last resort.

• The important word here, and the source of all controversy is ‘possible’. The extent to which the court is willing to consider an interpretation possible is one of the key areas of debate here. It is best to consider two cases, one on each side of the line:

  • Ghaidan v Godin-Mendoza: C’s gay partner had died while a tenant in D’s property. C tried to argue that he could inherit the statutory tenancy of his partner under Schedule 1, para. 2(2) of the Rent Act 1977. He relied on Articles 8 and 14 to base his claim. The statute applied specifically to husbands and wives. The court found that the statute could be interpreted to allow a same sex couple by adding the words ‘as if they were’ before huband/wife. Lord Millet dissented, tracing the history of the legislation, which initially only applied to widows, but was then extended to widowers. He argued that the gender specific nature was central to the legislation and that it was by interpreting the statute as they were, the court was usurping the functions of Parliament. The offending legislation was superseded by the Civil Partnership Act 2004.

  • R (Anderson) v Home Secretary: A statute gave the Home Secretary express permission to set the tariff period for those convicted of murder. C claimed that this was a breach of Article 6 rights to an independent and impartial hearing. The House of Lords agreed that it was a breach, but it was not possible to interpret the statute in a manner that was consistent with the right.

Section 4 – declaration of incompatibility

• S.4 is used when the court cannot interpret the domestic law in line with convention rights. It is important to notes that declarations of incompatibility have no legal effect; they are the court making a statement that out law is inconsistent with European rights.

• Despite having no legal effect, they speak political volume and have an almost 100% adherence rate, with the government making changes to their legislation in order to allow compatibility.

• Note that s.4 does have one legal effect – it allows s.10 fast-tracking of legislation to occur in order to rectify the incompatibility.

• S.4 is compromise, really. It allows the preservation, even if superficially, of parliamentary sovereignty.

• Examples of the use of s.4:

  • Bellinger v Bellinger – s.11 of the Matrimonial Causes Act 1973 could not be interpreted to allow a transsexual to marry. The government quickly passed legislation to rectify this.

  • Belmarsh – the Belmarsh case is a very famous use of s.4 The Home Secretary detained foreign nationals indefinitely and without charge under Anti-Terrorism, Crime and Security Act 2001,...