Civil Liberties, Human Rights, and the European Convention on Human Rights
Civil Liberties and Human Rights
Fundamental Rights and the Rule of Law - Introduction
In 1949, the Council of Europe was established.
The Convention on Human Rights was ratified by Member States in 1951 and came into force in 1953.
In 1965, the government granted individuals the right to petition under the Convention.
European Convention on Human Rights
The courts regarded the Convention as an aid to interpretation but had no jurisdiction to enforce the rights and freedoms under the Convention before the Human Rights Act 1998 came into force.
There was no obligation on courts to rely on the Convention if a source of authority could be found within domestic law.
The judiciary expressed willingness to protect individual liberties and construe statutes strictly in favor of citizens when ambiguous or silent, within certain limits.
However, there were limits to the extent to which judges were able to protect rights.
R v Inland Revenue Commissioners ex parte Rossminster Ltd [1980]: The House of Lords ruled that when a statute's meaning is clear, the court has no jurisdiction to go against its unambiguous words and must uphold the will of parliament.
Attorney General v BBC (1981) and Attorney General v Guardian Newspaper (No 2) (1990): The House of Lords confirmed that courts must consider international obligations assumed under the Convention and interpret the law accordingly.
European Convention on Human Rights & The Human Rights Act 1998
Institutions and procedures under the Convention
The Council of Europe, under which the Convention operates, is constitutionally distinct from the European Community.
The Council was founded in 1949, inspired by the United Nation’s Universal Declaration of Human Rights 1948.
The Court of Human Rights – elected by the Consultative Assembly of the Council of Europe – represents the judicial body.
The right of application
Applications may be brought by other member states or by individuals.
Under Art 43(1) of the Convention, any party to the case may, within three months from the date of the judgment of a Chamber, request that the case be referred to the Grand Chamber.
If it is not so referred, the judgment becomes final.
If referred, the judgment of the Grand Chamber is final, and Member States undertake to abide by the decision of the Court.
The Human Rights Act 1998
The incorporation of the European Convention on Human Rights (ECHR/Convention) into domestic law under the Human Rights Act 1998 (HRA 1998) finally ends the debate over whether or not to incorporate, which has endured for decades.
The HRA 1998 provides a charter of rights now enforceable before the domestic courts.
The effect of the HRA 1998 is such that three avenues for challenging public bodies arise.
first, a failure to comply with Convention rights now forms the basis for legal action;
secondly, a new ground for judicial review has been introduced, namely the failure to comply with the Convention and
thirdly, Convention rights may be used as a defence against actions brought by public bodies against private bodies or individuals.
The Human Rights Act 1998 (cont’)
However, the HRA 1998 is far from perfect.
The manner in which the Act is drafted raises a number of issues which give rise to some difficulties.
the meaning of ‘public authorities’ for the purposes of the Act;
whether the Act has solely a ‘ vertical’ effect – binding only those bodies for which the state is accountable to Strasbourg – or is capable of also having a ‘horizontal’ effect, and being enforceable against bodies for which the state is not accountable to Strasbourg;
the extent to which judicial interpretative techniques relating to statutes will change; and
the extent to which the judges will develop the common law to give effect to Convention rights.
The Human Rights Act 1998 Doctrine of Parliamentary Supremacy & HRA 1998
Under the constitution of the United Kingdom and consistent with the doctrine of parliamentary sovereignty, legislation cannot be entrenched.
Legislation cannot be given a ‘special’ or ‘higher’ status than other Acts of Parliament.
This traditional doctrine has been preserved in relation to the Human Rights Act.
The government announced that it did not intend to permit the courts to strike down Acts of Parliament, whether that legislation preceded the Act or was introduced subsequently.
Thereby, parliament’s sovereignty and, to the extent possible, the separation of powers is preserved.
The ECHR, in the government’s view, is ‘intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it’.
The courts are given power over delegated or secondary legislation.
Unless the Parent Act stipulates that the courts do not have the power to invalidate a piece of secondary legislation, its validity will depend on the court’s interpretation of its compatibility with the Convention.
The Human Rights Act 1998 Doctrine of Parliamentary Supremacy & HRA 1998 (cont’)
Section 3 of the HRA 1998 requires that primary and secondary legislation, whenever enacted, be interpreted and applied in a manner consistent with Convention rights.
Section 3 (2) makes it clear that this requirement does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.
It also does not affect the validity, continuing operation or enforcement of incompatible subordinate legislation if the primary legislation prevents removal of the incompatibility.
Declarations of incompatibility are regulated under Section 4, which provides that if a court is satisfied that a provision of primary or subordinate legislation is incompatible with one or more Convention rights, it may declare incompatibility.
The Human Rights Act 1998 Doctrine of Parliamentary Supremacy & HRA 1998 (cont’)
Section 4 (6) contains a vital limitation:
A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in question.
It is not binding on the parties to the proceedings in which it is made.
Only the superior courts have jurisdiction to make declarations of incompatibility.
The declaration will have no effect on the validity of the primary legislation in question, nor will the declaration affect the legal position of the parties to the litigation.
Where the court finds a violation of a Convention right, it has the power under Section 8 to grant a remedy to the victim.
The power to amend the law has thereby been preserved for parliament.
A fast-track legislative procedure will be employed to facilitate rapid parliamentary action in relation to the declaration.
The Human Rights Act 1998 The Confusion between Statute & Prerogative Power
The definition of primary legislation is provided in Section 21 of the HRA 1998.
Primary legislation includes any ‘public general Act, local and personal Act….. and Order in Council made in exercise of Her Majesty’s Royal Prerogative’.
Acts of Parliament have always been deemed to have superior force to acts of the prerogative.
Where a claimed prerogative power is held to exist, if it is not expressly overruled by statute, it will be held to be ‘in abeyance’ and the statute will prevail. Attorney General v De Keyser’s Royal Hotel Ltd (1920); R v Secretary of State for the Home Department ex parte Fire Brigades’ Union (1995)
The Human Rights Act 1998 appears to elevate Orders in Council to the same status as Acts of Parliament, thereby making them immune from invalidation by the courts.
The courts may set aside secondary legislation incompatible with the Convention – unless the parent Act makes this impossible – Orders in Council regulating the exercise of the prerogative may not be so set aside.
The Human Rights Act 1998 The Meaning of Public Authorities
The Human Rights Act 1998 provides that public authorities exercising executive powers must comply with the requirements of the Convention.
Section 6 (3) (b) of the Act provides that a public authority includes ‘any person certain of whose functions are functions of a public nature.’
The test, therefore is not state ownership, funding or control per se but rather the functions which a body performs.
Section 6 (5) provides that a person is not a public authority (applying the functions test) ‘if the nature of the act is private’.
Some authorities may, notwithstanding their ownership or control or funding by the state, be public on the functions test but will not be treated as public bodies in relation to some actions which are deemed to be private.
The Human Rights Act 1998 The Meaning of Public Authorities (cont’)
The Home Secretary stated that the British Broadcasting Corporation is a public authority but that independent television companies are not, while the Independent Television Commission is.
The definition of a ‘public body’ was considered by the Court of Appeal in R (Heather and Another) v Leonard Cheshire Foundation (2002).
The Foundation is a private charity that provides accommodation for the disabled, some of which is funded by the local authority according to its statutory duty under the National Assistance Act 1948, as amended.
Residents of the home funded by the local authority could rely on their Convention rights against the authority but not against the charity since it was not exercising public functions.
Aside from the funding being provided by the state, there was no other evidence ‘of a public flavor to the functions of the foundation or the foundation itself.
The foundation was not standing in the shoes of the local authorities.
Changes were then made to the legislation to broaden the reach of exercising functions of a public nature (Health and Social Care Act 2008 )
The Human Rights Act 1998 Horizontal Effect of the HRA 1998?
The classification of bodies (public or private) does not exhaust the potential for the Act to develop the protection of Human Rights.
The courts are public authorities and are under a statutory duty to give effect to Convention rights, raising the question of whether the Act has solely ‘vertical effect’ or is capable of having ‘horizontal effect.
Section 6 of the Human Rights Act 1998 provides that a public authority includes a court or tribunal, and proceedings against a ‘judicial act’ may be brought by way of appeal or by an application for judicial review.
Section 6 requires that the courts act compatibly with Convention rights and does not limit that duty to either the interpretation of statutes or to the actions of public bodies.
In respect of the common law, the Lord Chancellor stated that courts should act compatibly with the Convention in cases involving other public authorities and in developing the common law in deciding cases between individuals.
The Human Rights Act 1998 Horizontal Effect of the HRA 1998? (cont’)
In Professor HWR Wade’s view, this is ‘ a clear statement in favor of horizontal effect.’
Arguing for horizontality, Wade continues that it ‘….. will eliminate such problems [as to the definition of public authorities] altogether, since Convention rights will take effect against public bodies and private persons equally, thus saving a great deal of litigation’.
It is clear from section 6 that the Act does not intend directly to confer enforceable Convention rights between two private parties: direct horizontal effect is thereby precluded.
The duty of the courts, under section 6 (3) (a), tends to conclude that an indirect horizontal effect is possible.
The Human Rights Act 1998 Horizontal Effect of the HRA 1998? (cont’)
Case law illustrates how the courts deal with this issue, especially in privacy, which engages three issues.
First, there is no common law right to privacy: as Glidewell LJ stated in Kaye v Robertson (1991), ‘It is well–known that on English law there is no right to privacy.’
Secondly, privacy rights under common law derive from a relationship of confidence and breach of confidentiality.
Thirdly, Article 8 protects privacy rights in relation to family life, the home, and correspondence.
Venables v New Group Newspapers Ltd (2001):
An injunction was granted which prevents, indefinitely, the media from revealing the identity and whereabouts of the applicant.
Butler-Sloss LJ recognized that the defendant newspapers were not within the definition of public authorities but asserted that the court – as a public authority – must act compatibly with the Convention.
Article 8 of the Convention thus prevailed over Article 10 (freedom of expression) and was applied against a private body.
The Human Rights Act 1998 Horizontal Effect of the HRA 1998? (cont’)
Campbell v MGN Ltd (2002): The High Court developed the law of breach of confidence in a manner which restricted the press from unauthorized disclosure of details of treatment undertaken by the model Naomi Campbell and awarded her damages, thereby in all but name recognizing a right to privacy which is enforceable against non-public bodies.
R (Daly) v Secretary of State for the Home Department (2001): In the House of Lords, in declaring the prison policy of requiring prisoners to leave their cells for the purpose of searches, including the search of privileged legal correspondence, unlawful, Lord Bingham of Cornhill stated that his conclusions had been reached ‘on an orthodox application of common law principles’ but stated that the same result would yield by reliance on the Convention.
He recognized that this coincidence between common law and Convention might not always occur.
Lord Steyn was more explicit regarding the requirements of proportionality.
Citing Lord Clyde in de Fretias v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (1999), Lord Steyn declared that the criteria to be applied are ‘more precise and more sophisticated than the traditional grounds of review’, and that under the proportionality approach, ‘…the intensity of review is somewhat greater’.