European Human Rights - Essay Example

The United Kingdom's ratification of the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR and the enactment of the Human Rights Act 19982 have lead to the incorporation of the ECHR into domestic laws. In this respect, however, while the HRA is undoubtedly a step in the right direction, such that through its enactment, human rights are now guaranteed within the nation and remedies are provided within the UK jurisdiction. Hence, given the significance of the Convention, as well as the rights that it accords individuals,3 it is imperative to ensure that it is properly incorporated and enforced under the HRA. The Act, however, is not without problems. Hence, this essay aims to assess the manner that the HRA has been incorporated into UK law, as well as applied in courts. In this respect, this essay will argue that aside from the HRA's failure to properly incorporate the Convention rights; a more crucial failure is the fact that it leaves courts hesitant to apply the legislation due to the vague guidelines given under section 3 of the Act. As previously mentioned, the HRA is meant to give guarantees to the rights and freedoms embodied in the convention. Among its effects, the Act renders it "unlawful for a public authority to act in a way which is incompatible with a Convention right."4 In addition, it also obliges courts to "[s]o far as possible to do so"5, ensure that "primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights"6 and in instances where it is not possible, to "make a declaration of that incompatibility"7. Since the Act came into effect, however, the HRA's significance in successfully protecting the rights and freedoms embodied in the Convention has been limited by the two aforementioned provisions. First, with regard to the obligation posed on authorities under section 6, case law has exhibited difficulties in determining whether or not the person in question of violating the Convention under the HRA is a 'public authority', aptly defined or not. Under section 6, public authorities are defined as "a court or tribunal" or "any person certain of whose functions are functions of a public nature." 8 In this respect, the definition of public authority is imperative because in cases where violations of human rights occurred, individuals can only be awarded damages against public authorities. As defined by the act, damages refer to "damages for an unlawful act of a public authority".9 The definition of public authority is therefore a crucial aspect of enforcing the law, and applying it in courts. However, difficulty lies in determining whether a person has functions that are of public nature and whether public authorities are operating under private transactions. In the case of Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, 67, a private body was deemed to be performing public functions, and hence liable under section 6 of the Act.10 In this respect, the case was considered a landmark in case law regarding the definition of public authority, because it called for "a generous interpretation of who is a public authority".11 As a result, the definition of the term achieved what Lord Irvine indicated as a need for an extended and "wide-ranging definition of public authority", in order to extend the liabilities under the HRA "to provide as much protection as possible for the rights of the individual against the misuse of power by the state" preserving parliamentary sovereignty.12 However, the changing nature of government functions, as well as the growing partnership between public and private organizations has rendered this already difficult task more complex. In this respect, Lord Nicholls illustrates this in Aston Cantlow v Wallbank [2004] 1 AC 546, stating that: there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.13 Hence, in the case of Aston Cantlow v Wallbank [2004] as well as Hampshire County Council v Graham Beer14, the need to provide broad definitions to public authority and public functions were not achieved, such that results have not been satisfactory in the context of the Convention. In this respect, the lack of clear definition under section 6 of the HRA regarding public authorities limits the efficacy of the Act with respect to damages resulting from violations of human rights. Another problem with regard to the HRA is with regard to section 7, which states that "[a] person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may" rely on the Act under legal proceedings "only if he is (or would be) a victim of the unlawful act".15 This places a significant limit to the extent that rights and freedoms will be protected under the legislation because courts will first have to determine that the claimant is the actual or potential victim of a human rights violation. This is illustrated in the case of Director General of Free Trading v Proprietary Association of Great Britain and another16 where the complainants' rights were not directly affected by alleged violation, such that they cannot claim damages under Art 6 of the Convention. In this respect, the limit posed by the word 'victim' renders other individuals with sufficient cause in the human rights violation incapable of acting on behalf of the actual or potential victim. In cases where the victim is not willing to carry the burden of complaining to the courts, regardless of their reasons, their rights are left unprotected. Aside from the limits posed by the definitional difficulties posed by the HRA, section 3 of the Act renders an even more difficult problem regarding the rights embodied within the convention such that the words "so far as possible" calls judges to interpret legislation that allegedly violates human rights in a Convention-compliant manner, without expressly violating the legislation in question. Statutory interpretation under the HRA requires judges to derive meaning from the legal text, based on its nature and contents.17 This task proves to be more difficult under the HRA, however, because as noted by Lord Nicholls conventional interpretation from interpretation under section 3, because while in the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is depart from the intention of the Parliament which enacted the legislation.18 However, while statutory interpretation is understood as among the responsibilities of the courts, statutory interpretation with regard to section 3 of the HRA is still in its infancy, such that the manner that courts must "read" and "give effect" to the Convention is debatable. The debate, in this regard lies in the manner that the word "possible" must be construed. In order to do so, however, they must first determine that the legislation in question is Convention-compliant, since "Parliament has decreed that all legislation, existing and future, shall be interpreted in a particular way which is compatible with the Convention rights 'so far as it is possible to do so'" (para. 26). This task, however, is problematic because [a] comprehensive answer to [determining that a legislation is Convention-compliant] is proving elusive. The courts, including your Lordships' House, are still cautiously feeling their way forward as experience in the application of section 3 gradually accumulates.19 Furthermore, Lord Nicholls, in a different case, notes that in addition to this task, section 3 also entails a "far-reaching obligation on courts", such that they must also "construe the offending legislation with whatever modifications are necessary to bring it into conformity with the Constitution."20 However, courts are bound to exercise statutory interpretation, without venturing into the territory of legislation that is reserved for the Parliament. As Lord Hope notes, "the rule is only a rule of interpretation. It does not entitle the judges to act as legislators."21 This is recognised in In re S (Minors) (Care Order: Implementation of Care Plan) [2002], where a distinction was made between legislation and interpretation, such that: The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament.22 Hesitation of the courts to apply the HRA therefore lies in the danger and the difficulty of interpretation without resorting to judicial vandalism or an usurpation of the Parliament. And in the manner that it requires courts to pose "the question whether the law has taken a wrong turning."23 As Lord Asher notes in Willis v Baddeley [1892]: "[t]here is in fact no such thing as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances to which it has not previously been authoritatively laid down that such law is applicable."24 As previously mentioned, interpretation under the HRA also requires courts to interpret not only the original intent of the legislators who enacted the HRA, but the intent of those who enacted the Convention, which the Act aims to give effect to. This departure from the conventional approach is the reason, which Lord Steyn identifies as the main problem surrounding the Act. He states: [t]wo factors are contributing to a misunderstanding of [section 3]first, there is the constant refrain that a judicial reading down, or reading in, under section 3 would flout the will of Parliament as expressed in the statute under examination. This question cannot sensibly be considered without giving full weight to the countervailing will of Parliament as expressed in the 1998 Act.25 With regard to the problem of statutory interpretation under the HRA, the case of Ghaidan v Godin-Mendoza [2004] proves to be the landmark case, to date. In this respect, in deciding whether the Rent Act of 1977 can be made compliant with the Convention without expressly violating the nature of the said statute, Lord Rodger asserts that the words "read and given effect" requires two separate, though related obligations for courts, such that (1) "legislation must be read in a way which is compatible with Convention rights" and (2) "given effect in way which is compatible with those rights."26 Hence, in this respect, it is plausible that a violation of the Convention is evident in one but not the other obligation. Thus, as illustrated in the essay, aside from the poor incorporation of the Convention in the HRA, the real problem lies in the procedural and definitional aspects of the Act, which renders judges hesitant, if not limited under the Act, to apply it in court. On one hand, the HRA is plagued by definitional challenges, such that it renders the second obligation of the HRA, which is to prevent public authorities from acting incompatibly with the Convention, from achieving its aim because of the difficulty in determining what is covered by the words "public authority" and "public function." While a broad definition will give the law more bite and ensure the protection of a greater number of individuals, the inability of the HRA to anticipate changes in the nature of government functions and authorities, as well as the increase of public and private partnerships makes it difficult to apply the Act in courts. In addition, this deficiency is also apparent in the limitation placed by the Act on who can aptly lodge complains against human rights violations. In this respect, it fails to incorporate the reality that not all victims or potential victims of human rights violations are willing to protect their rights and freedoms and complain, given the burden they will have to endure during the proceedings of the case. It also fails to realise that not all victims or possible victims may be aware of the human rights violation or have the necessary resources to make such complains. However, a more crucial problem with regard to ensuring that Convention rights are protected under the HRA is the vague description of what are to be considered as "possible" interpretations of a legislation touted to be in violation of the human rights in order to make it Convention-compliant and protect the rights of individuals. In this regard, courts are hesitant to undergo statutory interpretation under section 3 of the HRA because of the constitutional boundaries that may be violated if interpretation is not appropriate. In this respect, the difficulty lies in the manner that the Act does not necessarily accord individuals with human rights, but only accords human rights insofar as the Convention confers them. Thus, as indicated by Lord Steyn, this approach to interpretation, which requires courts to interpret legislation not only based on the original intent of the legislative body that enacted the HRA, but on the legislative body that enacted the Convention as well, renders judges at a difficult position, which creates confusion on the reading in or reading down of an act. Hence, the HRA, although a commendable piece of legislation on the basis that it indicates a step towards a more comprehensive and effective protection of human rights cannot be considered successful, as of now, because courts are still hesitant to apply them to concrete cases due to the definitional and procedural problems embodied in it. References Aston Cantlow v Wallbank [2004] 1 AC 546 European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S 221. Ghaidan v Godin-Mendoza [2004] UKHL 30, Human Rights Act 1998. In re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291, 313. Lord Irvine, cited in Vikram Sachdeva, "The scope of Hybrid authorities within the HRA 1998" [2004] JR 43, para. 24; [available online] http://39essex.egovision.com/documents/VS_Scope_of_Hybrid_Public_Authorities.pdf; accessed 19 November 2005. Lord Steyn, "Dynamic Interpretation amidst an Orgy of Statutes", [2004] EHRLR 245. Mayer, Brown, Row, and Maw, 2002. "Human Rights Case Law: Local Developments to Date", Human Rights Newsletter, 6, (June 2002): 29. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, 67 Rojas v Berllaque (Attorney General for Gibraltar intervening) [2004] 1 WLR 201, 208-209. R v A [2002] 1 AC 45. Willis v Baddeley [1892] 2 QB 324, 326. Read More