Human Rights Act 1998 - Essay Example

?“By the use of case law, critically assess the extent to which the domestic courts have used the Human Rights Act 1998 to enhance the protection of human rights in domestic law” Introduction In 1998, Parliament enacted the Human Rights Act, which had expressly given effect to Convention rights. Previously, Convention rights under the European Convention on Human Rights and Fundamental Freedoms had only indirect application in the UK, when courts voluntarily refer them in their decisions, but domestic courts are not obliged to abide by them. This is because the UK is only bound by the Convention under international law, but not domestically. With the passage of the HRA 1998 however, Convention rights have been domesticated and become part of English law to which courts are obligated to legally defer to in their decisions. Despite the negative reviews that some quarters gave the law, particularly right-leaning groups who think that it impeded the efforts to go after terrorists and politicians who perceived it as fostering the politicisation of the judiciary, the HRA 1998 has a considerable impact on certain aspects of the English legal system. This is particularly true with respect to statutory interpretation and the law on privacy rights. The law has expressly given the judiciary the prerogative to subject legislations to scrutiny to determine if they are consistent with Convention rights, which seems a dilution of the parliamentary sovereignty doctrine. In addition, the HRA 1988 has helped in the development of the common law right to privacy, which was once declared to be absent from the English legal system. In this sense, the HRA has, to an extent, become an instrument by the courts in further enhancing human rights protection of UK citizens from government intrusion. Background to the Human Rights Act 1998 The atrocities committed in World War have led to the convening of Western European countries in 1950 and the drafting of the European Convention on Human Rights and Fundamental Freedoms (ECHR hereafter) by its arm, the Council of Europe. The document outlined the fundamental human rights and was largely based on the 1948 UN document called the Universal Declaration of Human Rights. The ECHR became effective in 1953. Under this law, a state can bring an action against another on behalf of its citizen, but a citizen can also bring an action against his own government in the ECHR Court located in Strasbourg. This right was acknowledged by the UK in 1966 (Miles et al 438). Nonetheless, it would take a lot of procedural snags for a UK citizen to hurdle before being allowed to pursue an action at the Strasbourg Court. For one, a UK citizen must exhaust all remedies available to him under domestic laws before a case can be pursued at the ECHR Court. Moreover, an ECHR Court decision favourable to him is not really binding domestically because of sovereignty issues. As a matter of fact the ECHR has limited application domestically and only in the following conditions: to aid the interpretation of domestic laws in cases they are not clear; to guide the judiciary in the exercise of its judicial discretion, and; to establish the extent of common law (Miles et al 438). All of the aforementioned conditions were established in the cases of R v Secretary State for the Home Department, ex parte Brind [1991] AC 696, Attorney General v Guardian Newspaper Ltd [1987] 1 WLR 1248 and Derbyshire County Council v Times Newspapers Ltd [1992] QB 770. In R v Secretary, a group of journalists challenged the Home Secretary’s directive prohibiting the publication of speeches of terrorists. The Court held that the Convention is not part of UK law and can be resorted only when a domestic legislation is ambiguous. On the other hand, in Attorney General v Guardian, which was about the publication of the memoirs of a retired secret service employee, the Court held that the judiciary could look to the ECHR for guidance in the use of its discretionary duty to decide on matters such as duty of confidence. Finally, in the Derbyshire case, the Court rejected the proposition that local authorities are limited on grounds of public interest from suing the press for libel. The principles underpinning the Convention may be used as a guide in determining whether the right to public information should prevail over the right to protect one’s reputation, but it should not be made to decide uncertainty in common law. In 1998, Parliament enacted the Human Rights Act 1998, which incorporated Convention rights into domestic law. It came into force in 2000 and serves three functions: proposed legislations are now made subject to scrutiny vis-a-vis compatibility with Convention rights; domestic courts can now issue a declaration of incompatibility whilst incompatible Scottish laws may be declared unlawful, and; acts of public authorities may now be challenged domestically when they are inconsistent with Convention rights without resorting to the distant Strasbourg Court (Dewar and Parker 2003 p. 478). The Significance of the HRA 1988 in the Protection of Human Rights in Domestic Law Prior to the passage of the HRA 1998, the rights enshrined under the Convention were binding upon the UK, but only in international law. Domestically, it did not serve to alter the laws of the UK on the ground of sovereignty as was held in the case R v Secretary of State for the Home Department, ex parte Brind [1999] 1 AC 696. Convention rights had only indirect effect on domestic courts only because domestic courts had often regarded them with deference. In Salomon v Customs and Excise Commissioners [1967], the Court held that in deciding case the courts must abide by the prima facie presumption that Parliament does not want to breach international law including specific treaty obligations. 2 QB 116, 143 Scottish courts, on the other hand, rigidly resisted at one point their influence as was evident in the case of Kaur v Lord Advocate [1980] SC 319 where the Court held that courts should not find recourse to the Convention despite the vagueness of a law. Fortunately, in T, Petitioner [1997] SLT 224, that dictum was abandoned (Turpin and Tomkins 271). Moreover, the courts had at one time noted that the Convention can be used in the development of common law because of their parallel undertones starting with the case of Rantzon v Mirror Group Newspapers [1994] QB 670, 691. In that case, the Court amended a lower court’s award in a libel case on the ground that it was excessive declaring that it was inconsistent with Article 10 of the ECHR. In Blathwayt v Lord Cawley [1976] AC 397, the House of Lords referred to a condition in a will providing forfeiture to any grantee who eventually adopts the Roman Catholic religion as probably a breach of Convention rights. Nonetheless, it upheld the condition on the ground that it did not prevent the grantee from exercising his religious freedom, but a choice between the grantor’s freedom of disposition and the right of the grantee to hold a valuable piece of property. Moreover, in the Derbyshire case mentioned earlier, the CA expressly declared that the Convention must be resorted to when common law is unclear on a specific matter, a declaration the HL, at that time, did not have the gall to rebuff. However, in the Brind case, the HL held that a violation of the Convention does not automatically merit judicial review. The implication of this decision was that public authorities who acted inconsistently with the Convention were not ipso facto held unlawful in their action. This was the scenario until the passage of the HRA 1998 (Turpin and Tomkins 271-272). The HRA 1998 has expressly given effect to Convention rights from Article 2 to 12 and 14 thereof as well as Articles 1 to 3 of the Protocol under Article 1(2). The implication is that Convention rights have now direct application in English courts and any decision that is grounded on it does so because it is part of the domestic law and not because of the persuasive effect of the Convention per se. A few years after its enforcement, and especially after the high profile terrorist attacks in several big cities all over the world, including London, some quarters had rallied for its repeal seeing this piece of legislation as an impediment to the fight against terrorism. This was true with right leaning members of the press and some politicians. Even the Conservative Party favoured its repeal. The politicians perceived it as a changing the balance between elected and non-elected powers. Nonetheless, it is also perceived by the legal minds, such as former Attorney-General Dominic Grieve, as a tool for ordinary citizens to challenge government intrusions into their affairs. The main arguments against the HRA 1998, however, is that it politicises the judiciary and fosters a compensation culture (Gillespie 167). One of the areas with which the HRA has a great impact in the English system is statutory interpretation. Lord Cooke of Thorndon remarked during a deliberation of the law in Parliament that “the common law approach to statutory interpretation will never be the same again” (cited Keilhack 19). Section 3(1) and (2) of the HRA 1998 provides for interpretation of legislation, which is impliedly addressed to the courts as statutory interpretation is their primary duty. The section provides that legislations, primary or secondary, must be read and given effect in a way that is not inconsistent with the Convention rights, although adding that such should not affect its operation or validity. Prior to the HRA 1998, statutory interpretation was seen as a creative process by which the courts “develop the law according to their own understandings and interpretative priorities” (Malleson 58). Nonetheless, English courts sometimes follow trends employed in statutory interpretation in other jurisdictions such as the purposive approach where the intent of the legislators are determined to unravel the meaning of less than clear provisions. In Pepper v Hart [1992] UKHL 3, for example, the Court allowed a statement in the Hansard during the deliberation of a law to influence their interpretation of it. With the enforcement of the HRA, the courts are now granted the power to scrutinise various legislations and determine their compatibility with Convention rights, a prerogative expressly conferred upon them by the law. Nonetheless, the courts have often exhibited self-restraint in exercising this power. In Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] All ER (D) 210, a case where the issue was whether a housing association was to be deemed a public authority under the HRA 1998, the Court opined as an obiter dictum that courts should not exercise this new right in a way that will infringe upon the legislative by reinterpreting laws in an extreme manner. Similarly, in R v Lambert [2002] 2 AC 545, the Court held that courts should not interpret laws contrary to the plain intent of the legislature although it was also suggested by other members in the same case that a “linguistically strained” interpretation may just be what is needed under s. 3 of the HRA 1998. This judicial deference, according to Lord Woolf is based on the fact that the Parliament is constituted by democratically elected persons who are expected to have public interest in their minds when they passed laws (cited Malleson 63-64). In A v Secretary of State for the Home Department [2004] UKHL 56, 2 AC 68, however, Lord Bingham referred to such judicial deference as a consequence of non-applicability of margin of appreciation in domestic courts, with the term referring to concept originating from the ECHR allowing signatory states a certain amount of freedom in regulating its own activities and in applying Convention rights without being subjected to court reviews. Another area in which the domestication of human rights is seen to impact greatly is in the development of common law. Prior to the enactment of the HRA 1998, a court remarked that there was no common law right to privacy in England. In Kaye v Robertson [1991] FSR 62, an actor applied to the Court to prohibit a journalist from publishing his photos whilst he was nursing injuries in the hospital after a car accident. The photos were obtained without his consent and deceptively. The Court ruled that Kaye’s application cannot be granted because there is no such thing as right to privacy in England and if at all, the only ground applicable in the case is malicious falsehood, where the corresponding remedy is prohibiting the newspaper to imply, in any way, that the actor consented to the interview. This lack of remedy under domestic law has compelled the plaintiffs in Earl Spencer and Countess Spencer v UK [1998] 25 EHRR CD 105 to go straight to Strasbourg Court contending that domestic law does not protect them from invasion of their privacy. Douglas v Hello! [2001] 2 All ER 289 was the first case on privacy decided after the HRA 1998 came into law. The case involved movie stars Michael Douglas and his wife Catherine Zeta-Jones who sold the rights of the coverage of their marriage to OK!, but a gate-crasher who took pictures of the event had sold them to Hello!. They filed an injunction against the magazine, but the Court decided that an injunction was not remedy by a claim for damages considering that the couple had already commercialised the event by selling the rights to OK! implying that a law of privacy can be resorted to in the case. Also seen as a further important step towards the development of the common law right of privacy was the case of Venables and Thompson v News Group Newspapers Ltd [2001] 2 WLR 1038, which was decided after the HRA 1988 came into force. The case involves the high profile convicted killers of the Bulger child in 1993, which were about to be released from prison. The boys, now 18 year olds petitioned for the court to extend the injunctions against publications to prohibited publications of personal data about them. The Court balanced the freedom of information and right to privacy, two Convention rights, and held that the claimants were able to convincingly persuade the Court of the merit of their case. Conclusion Despite the negative perception by some of the HRA 1998, it has evidently become an instrument of the courts to further enhance the protection of UK citizens from potentially human rights violation from public bodies. For one, it enables the courts to subject legislations to scrutiny and determine whether they are consistent with Convention rights. This is quite a progress from the once invincible Parliament. It has, to an extent, allowed to dilute parliamentary sovereignty although the court’s decision cannot influence its validity. Nevertheless, the court’s new power can only be a positive addition to the protection of human rights because now a reviewing body provides more opportunity for the scrutiny of laws and ensure that they really promote human rights protection. Moreover, the HRA further enhances human rights protection with the development of the common law right to privacy, allowing private citizens to secure the sanctity of their privacy not only against public bodies, but also against intrusive members of the press on the underpinning principles of Convention rights. References: A v Secretary of State for the Home Department [2004] UKHL 56, 2 AC 68. Attorney General v Guardian Newspaper Ltd [1987] 1 WLR 1248. Blathwayt v Lord Cawley [1976] AC 397. Derbyshire County Council v Times Newspapers Ltd [1992] QB 770. Dewar, J and Parker, S. (2003). Family Law: Processes, Practices, Pressures : Proceedings Of The Tenth World Conference Of The International Society Of Family Law, July 2000, Brisbane, Australia. Oxford: Hart Publishing. Douglas v Hello! [2001] 2 All ER 289. Earl Spencer and Countess Spencer v UK [1998] 25 EHRR CD 105. Gillespie, A. (2007). The English Legal System. Oxford University Press. Kaur v Lord Advocate [1980] SC 319. Miles, G., Clout, I., Firth, C., Laidlaw, P., Ollerenshaw, Z., and Cutts, R. (2007). Foundations for the LPC 2007-2008. 11th Edition. Oxford University Press. Pepper v Hart [1992] UKHL 3. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] All ER (D) 210. R v Lambert [2002] 2 AC 545. R v Secretary State for the Home Department, ex parte Brind [1991] AC 696. Rantzon v Mirror Group Newspapers [1994] QB 670, 691. T, Petitioner [1997] SLT 224. The Human Rights Act 1998. Venables and Thompson v News Group Newspapers Ltd [2001] 2 WLR 1038. Read More