The Human Rights Act, 1998

Brief Overview

• Human rights: Rights inherent to all because we exist as human beings, not granted by any state.
• Framework origins: European Convention on Human Rights.

The Human Rights Act 1998

• Purpose and scope.
• Effects on Legislature, Executive, Judiciary.
• Relationship between Interpretation and Declarations of Incompatibility.
• Understand how we rely on human rights in the UK, and how the Courts interpret laws in light of human rights law.

Moral Rights

• Moral belief that people should have rights.
• Example: Denial of education to young women in Afghanistan violates their rights.
• Moral judgment without legal entrenchment.

From Moral Rights to Legal Rights

• Attempts to enshrine fundamental rights of individuals within law.
• Magna Carta (1215):
  • Originated in the UK.
  • Protected the right not to be detained arbitrarily.
  • Allowed court action for release if deprived of liberty without reason.

What are Human Rights?

• Rights we have simply because we exist as human beings.
• Not granted by any state.
• Universal rights inherent to all, regardless of nationality, sex, origin, religion, language, or status.
• Range from right to life to rights making life worth living (food, education, work, health, liberty).

Fundamental Rights in 20th Century International Law

• Origins in the fallout of World War 2 (1939-1945).
• Incredible Suffering:
  • $70-85$ million deaths during the war
  • $1.3$ million Jewish people sent to concentration camps
  • $960,000$ Jewish people died
• $51$ countries formed the United Nations (UN) in 1945 to prevent recurrence.
• UN Charter:
  • Save future generations from war.
  • Reaffirm human rights, dignity, and worth of the human person.

1948 Universal Declaration on Human Rights

• Agreed by nations on December 10, 1948.
• First time setting out a list of agreed rights.
• Non-binding declaration.
• Binding treaties agreed 18 years later:
  • International Covenant on Economic, Social and Cultural Rights (ICESCR).
  • International Covenant on Civil and Political Rights (ICCPR).

Human Rights in the UK Before International Framework?

• 1215 Magna Carta:
  • Recognized legal rights of normal citizens.
  • Laws apply to monarchy and citizens.
  • Limited royal authority by establishing law as a power.
  • Origins of uncodified constitution.
• 1689 English Bill of Rights:
  • Set out rights of Parliament.
  • Created rights for citizens:
    • Freedom from cruel and unusual punishments (forerunner to ban on torture).
    • Freedom from fines without trial.
• 1965 Race Relations Act:
  • First UK legislation addressing race relations and racial discrimination.
  • Banned racial discrimination in public places.
  • Made promotion of hatred based on 'colour, race, or ethnic or national origins' an offence.

Alignment with International Standards

• UK updated its approach to align with international standards when the international system was created.

Council of Europe

• Concern after WWII to prevent recurrence.
• Goal to bring European countries (France and Germany) within a common framework.
• Creation of Council of Europe in 1949:
  • Goal of greater unity among European countries.
  • Based on ideals and principles.
  • Goal of social and economic progress.

European Convention on Human Rights

• Need for a document outlining core principles of European countries joining Council of Europe.
  • Reject and address WWII violations.
  • Reject the repression of freedoms by the Soviet Bloc.
• Enforceable against signatories; a binding treaty.
• 1950 UK government signed the ECHR.
  • Designed to protect human rights, democracy, and the rule of law.
  • Supplementary to the UDHR of 1948.
  • Specifying rights and freedoms for people of Europe.
• Created by the Council of Europe – the Continent’s leading human rights organization.
• THIS HAS NOTHING TO DO WITH THE EUROPEAN UNION

ECHR Content

• Protected mainly civil and political rights:
  • Life (Article 2).
  • Prohibition against torture, cruel, unusual, and degrading punishment (Article 3).
  • Prohibition against slavery and forced labor (Article 4).
  • Protection of liberty and non-arbitrary arrest (Article 5).
  • Right to a Fair Trial (Article 6).
  • No punishment without law (Article 7).
  • Right to respect for Private and Family Life (Article 8).

Content: Protected Rights

• Freedom of Thought, Conscience, and Religion (Article 9).
• Freedom of Expression (Article 10).
• Freedom of Assembly and Association (Article 11).
• Right to Marriage (Article 12).
• Right to an effective remedy (Article 13).
• Non-discrimination relating to covenant rights (Article 14).
• Protocol 1:
  • Property (Article 1).
  • Education (Article 2).
  • Elections (Article 3).

Institutional Enforcement

• Initially, only states could complain about violations by other states.
• Individuals' right to complain was recognized and enshrined in Article 34 of the ECHR.
• The main organ of enforcement is the European Court of Human Rights.

The ECtHR: Strasbourg

• The European Court of Human Rights (ECHR or ECtHR) is an international court of the Council of Europe.
• Interprets the European Convention on Human Rights.

The Position in the UK before the Human Rights Act

• What was position in the UK before the Human Rights Act?

The period between 1950 and 1998

• Party to the European Convention on Human Rights - committed to fulfilling the Articles outlined in the Convention.
• Cases concerning questions of human rights would have to go to the European Court of Human Rights - was stipulated in the 1950 convention.
• The UK didn’t have its’ own human rights legislation that was up to date with international standards and cases concerning the rights outlined in the ECHR could not be heard within the UK’s own Courts.
• RIGHTS BROUGHT HOME- THE HUMAN RIGHTS BILL

The Human Rights Act 1998

• Introduced in 1998 to “bring rights home”.
• Allows UK nationals to rely on rights in the European Convention on Human Rights before domestic courts.

Human Rights Act 1998

• Enshrines the rights in the European Convention on Human Rights into domestic law.
• Imposes a legal duty on the state to respect and protect rights.
• 'Brings rights home': Individuals can seek to vindicate their rights before the UK courts rather than the European Court of Human Rights.
• Protects everyone in the UK, regardless of citizenship or status.

Which Rights?

• The UK does not enshrine its own bill of rights
• Articles 2 to 12 and 14 of the ECHR.
• Brings Convention Rights into UK law- a dualist system.
• Rights are generally civil and political in character

Key Provisions of the Human Rights Act

• Incorporation of ECHR
  • The Act incorporated the substantive rights contained in the European Convention on Human Rights into UK domestic law.
• Interpretation of Legislation
  • Courts must interpret legislation in a way that is compatible with the Convention rights, as far as it is possible to do so.
• Declaration of Incompatibility
  • If a court finds that primary legislation is incompatible with a Convention right, it can issue a declaration of incompatibility, but cannot strike down the law.

Scope of Human Rights: Applies to public authorities

• Public authority must not act incompatibly with convention right.
• Includes any body whose functions are functions of a public nature.
• Extends beyond core aspects of government.
• Can include contracted out public functions to private companies: eg. Prison.

Scope- Limitations

• Article 8 Right to respect for private and family life
  • Everyone has the right to respect for his private and family life, his home and his correspondence.
  • There shall be no interference by a public authority with the exercise of this right 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 the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Effect on Parliament: Section 19

• Before a second reading of a bill, the Minister must either:
  • make a statement of compatibility which involve stating that the minister believes the bill will be compatible with the convention rights
  • Make a statement to Parliament why the minister is unable to affirm compatibility but why nevertheless Parliament passed the act

The Effect on the Executive: Section 6

• Section 6 of the HRA requires that all public authorities must act in a compatible way with the convention rights unless they are required to do otherwise by primary legislation
• This grants a stronger power to courts : any action of the executive that is found to violate these fundamental rights can be declared invalid
• The power of judicial review by the court is thus expanded to ensure compatibility of executive/administrative action with human rights

Effect on Courts

• INTERPRETATION: Courts must interpret domestic legislation in a way that is compatible with the Convention rights, as far as possible.
• PRECEDENT FROM STRASBOURG: When judges are deciding cases in which a question about a Convention right has arisen, s 2 of the Human Rights Act 1998 states that the court must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.
• THE BALANCING ACT: Courts must balance the protection of individual rights with the legitimate interests of the state, such as national security or public order
• REMEDIES: While courts cannot strike down primary legislation, they can grant various remedies to address human rights violations, such as damages or injunctions.

Key points

• (1) Vertical effect only
  • Human rights enforceable against public authorities but not against private parties
• (2) Common law development
  • Duty to develop and apply the law (including law applicable in horizontal cases) in the light of ECHR values and principles
• (3) Application to all law
  • All existing law (including common law) must be applied in a manner which gives effect to Convention rights
• (4) Full horizontal effect
  • All cases must be decided compatibly with Convention rights, even this involves courts inventing new causes of action

Sections 3 and 4 of the Human Rights Act 1998

• 3. Interpretation of legislation
  • (1) 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.
• 4. Declaration of incompatibility
  • (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
  • (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility….
  • (6) Such a declaration
    • (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given….

Section 3- Interpretation of legislation

• 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.
• This is a powerful obligation which requires courts to utilize the interpretive powers in a strong manner to ensure legislation is compatible with convention rights
• Major question:
  • What does it mean to say ’so far as is possible’: what is the extent of the court’s power to interpret and what are its limits?

Section 3: what is ‘possible’

• Courts will go beyond ordinary language
• Extent to which they will do so involves taking account of:
  • whether it contradicts main legislative scheme
  • whether courts are well-suited to make such a determination
  • the practical consequences of an interpretation in conformity with the convention

The Effect on Courts: S.4 Declaration of Incompatibility

• The Human Rights Act gives courts a new power in section 4: it made it clear that courts have the power to declare that legislation is not compatible with the Convention rights
• What is the effect of the declaration of incompatibility on primary legislation?: It does not render the Act of parliament invalid or does not prevent it from applying to the parties in the case
• What is the point of such a declaration if it is not binding and does not have any effect on the validity of the law?

The Legal effect of a DoI

• It triggers the mechanism outlined in section 10 of the Human Rights Act
• Section 10 creates a fast-track procedure to amending incompatible legislation
• The government however does not have to utilize any of these functions and can keep the law on the books
• If the declaration of incompatibility is not binding, what other effect does it have? Why does the government respond?

B and L v UK (2006)

• Facts:
  • A woman had married a man but later divorced him and had a relationship with his father.
  • It was perfectly legal for the woman to live with her father-in- law, the Marriage Act 1949 prohibited them from getting married while the woman’s first husband was still alive.
  • They argued that the prohibition on their marriage was a breach of Article 12 of the Convention which gives a right to marry.
• Held:
  • The European Court of Human Rights held that there was a breach of Article 12
  • Following this the Marriage Act 1949 (Remedial) Order 2006 was passed.
  • This order removed the prohibition on in-laws marrying.

The Effect on Secondary legislation

• Secondary legislation is that which is made by a minister under the authority of an Act of Parliament
• Court can declare secondary legislation unlawful and invalid to extent of incompatibility

Political Effects

• A declaration of political of incompatibility is very significant politically

The Belmarsh case A and another v Secretary of State for the Home Department (2004)

• The Act allowed foreign nationals to be detained indefinitely without trial where there was suspicion that they were involved in terrorist activity
• This breached:
  • Article 5 (the right to liberty)
  • Article 14 (no discrimination on basis of nationality).
• House of Lords declared that the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the Convention.
• This decision forced the government to change the law and release the detainees. However, they were not given full liberty but released on strict conditions.

The Relationship between Interpretation (section 3) and Declarations of Invalidity (section 4)

• Section 3 and 4 are complementary
• The Human Rights Act allows courts to interpret legislation compatibly with the convention where this is possible to do: this preserves the role of the courts as interpreters and not legislators in terms of the separation of powers
• If it is possible to interpret the legislation in conformity with the convention, then section 4 will not apply
• However, if it is not possible to interpret the Convention on the Law compatibly with convention, then section 4 applies: a court may issue a declaration of incompatibility
• Thus the central question concerns whether it is possible to interpret the legislation in conformity with the convention: this allows courts some leeway to decide whether to deal with the case under section 3 or section 4

SECTION 3 IN ACTION: How far can a court go?

• s. 3 in the courts: R v A 2001
• Turned on the interpretation of s 41 of the Youth Justice and Criminal Evidence Act
• s 41 rendered inadmissible any evidence concerning any previous sexual relationship between an alleged rape victim and the defendant
• The court found that a blanket ban constituted a breach of Article 6 ECHR (right to a fair trial)
• The early jurisprudence: R v A 2001

s. 3 in the courts: R v A 2001

• Can s 41 be given a right- consistent interpretation?
• s 41 requires sexual behavior similar [to the behavior that constitutes the alleged rape] OR sexual behavior ‘which took place at or about the same time as [the alleged rape]’

Lord Hope:

• Warned against expansive reading of s3
• We must look at ‘the mischief which [the legislation] is meant to achieve’
• s 3 is ‘only a rule of interpretation’
• An interpretation cannot be chosen if it goes against the grain of the legislation

Lord Steyn:

• Evidence of previous sexual relationship between defendant and complainant is admissible under s 41, as being ‘similar’.
• The court’s duty under s 3 is a strong one: It licenses even linguistically strained interpretations
• It is not merely triggered by linguistic ambiguity
• Declarations of incompatibility are measures of last resort

s. 3 in the courts: Bellinger

• Lord Nicholls: ‘This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures.’
• Therefore, Convention-consistent interpretation is not the appropriate remedy
• Bellinger v. Bellinger 2003 Redefining the meaning of male and female to allow for those who have undergone gender-reassignment to marry

Takeaway Questions Bellinger: Lord Nicholls

• What did Lord Nicholls hold about section 3?
• What was the alternative?

Ghaidan v. Godin- Mendoza

• Rent Act 1977: 2(1) ‘The surviving spouse (if any) of the original tenant…shall after the death be the statutory tenant…’ 2 (2) ‘…a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant.’
• Does this apply to the same sex partner of the original tenant?
• The Parliament had not intended that the provision would apply to homosexual couples
• The ordinary meaning of the words ‘husband- wife’ does not encompass same sex partners

LORD MILLETT (DISSENTING)

• Sharp distinction between judicial interpretation and judicial legislation
• s 3 is limited by legislative history
• s 3 is limited by the words chosen by Parliament: the interpretation must be ‘intellectually defensible’

LORD NICHOLLS

• Parliamentary intent is not determinative
• The applicability of s 3 does not hang on the ‘semantic lottery’ of the words chosen by Parliament: ‘as if his or her wife’
• It is limited by the ‘general thrust’ of the legislation
• S 3 will not apply in cases where the change required for rights compliance has broad social ramifications which only Parliament can assess (as in Bellinger)

Takeaway Questions Ghaidan-Lord Nicholls

• What is the effect of section 3 according to Lord Nicholls?
• What restrictions did he place on this view?
• What was the finding in this case?

Takeaway Questions Ghaidan- Lord Millett (dissenting)

• What did Lord Millett hold?
• What would the effect of his approach have been on the concrete case?

Parliamentary Sovereignty and the HRA

• The Human Rights Act seeks to tread a delicate balance between the principle of Parliamentary sovereignty and the recognition of fundamental rights

• However, given the conservative understanding of the principle in the UK, it was felt that it will be too radical to allow courts to invalidate legislation passed by Parliament (as occurs in many other countries)

• ss. 3 and 4 modify PS for the sake of rights protection

• They incorporate a more substantive vision of the rule of law

• They introduce a checks-and-balances element in the relationship between Parliament and the judiciary

• S. 4 seems to preserve Parliamentary sovereignty BUT: No declaration of incompatibility has ever been ignored by Parliament

• S. 3 seems to preserve the separation of powers between Parliament and the courts: Parliament is there to make law, courts are there to interpret it BUT: s. 3 blurs the distinction between law creation and legal interpretation

Inevitable Impact of ECHR on statutory interpretation Lord Woolf in R v A (2001)

• “Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights.
• Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s 3 [of HRA 1998] goes much further.
• Undoubtedly, a court must always look for a contextual and purposive approach: s 3 is more radical in its effect . . . It will sometimes be necessary to adopt an interpretation which linguistically may appear strained.”

Challenges and Criticisms

• Judicial Overreach
• British Bill of Rights
• Independent Review 2022
• Scholarly debates- Alison Young, constitutional dialogue, greater use of S.4? (Shona Wilson Stark), the elusive divide between interpretation and legislation (Aileen Kavanagh),common law constitutionalism (TRS Allan) in defence of parliamentary sovereignty, repeal or reform HRA (Richard Ekins)

Summary

• Human Rights Act domesticates human rights
• Goal to distinguish role of courts and legislature
• However, Section 3 blurs the distinction between creating law and interpreting it
• Section 4 seeks to preserve parliamentary sovereignty – but no DoI has ever been ignored completely
• Modify parliamentary sovereignty for goal of protecting rights
• Introduces a new form of dialogue and check that judiciary has on legislature