HRA Charter in the UK - Essay Example

The Human Rights Act 1998 (HRA) incorporated the ECHR into UK law and the preamble to the HRA s that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. For the first time, the UK implemented a piece of legislation akin to a constitutional Bill of Rights, protecting essential human rights and freedoms1. Prior to 1998 there had been no British constitutional statement regarding basic human rights similar to those found in the constitutional provisions of other democracies2. This new human rights “Charter” now has direct legal effect and protection in the UK. Furthermore, section 2(1) of the HRA asserts that “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights3. Moreover, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts4”. The focus of this analysis is to consider how the HRA has impacted the judicial approach to human rights claims prior to and after the implementation of the HRA, with reference to case law particularly Fitzpatrick v Sterling Housing Association5and Ghaidan v Mendoza.6 Prior to the implementation of the ECHR, the courts would exploit uncertainty in existing legal principles to incorporate Convention rights through the backdoor on public policy grounds7. For example, in the case of Waddington v Miah8, Lord Reid expressly referred to Article 7 of the Convention in reaching his determination exploiting ambiguity in existing legislation applicable to the case. However, the fundamental difference is that Parliamentary sovereignty was paramount, and prevented any significant increases in levels of human rights protection under national law prior to the HRA9. Moreover, Parliament was free to remove or control individual liberties at any time by passing appropriate legislation. However, the HRA goes further whereby the role of the judiciary is to act as guardian to individual human rights10. As such, it is argued that the HRA sets a new standard for all new legislation and provides essential powers to UK courts to enforce Convention rights, thereby arguably forcing Parliament’s hand to change legislation that is incompatible due to the obligation under section 4(2) of the Act to make declarations of incompatibility.11This effectively reverses the previous situation whereby Parliament could enact any legislation to circumvent human rights issues and creates a shift in power from the legislator to the court. The implementation of the HRA and the section 4(2) obligation arguably creates a reversal, whereby Parliament will now consider HRA compliance at the outset when considering new Bills passing through. To circumvent this obvious constitutional problem, Lord Irvine of Lairg’s comments during the Parliamentary debate on the HRA argues that the Act retains the classical principle of parliamentary sovereignty, while maximising protection to individuals12. Indeed the debates asserted that section 3(2) of the HRA guarantees that “courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the Convention rights…. It is then for the government and Parliament to consider what action should be taken”13. The interpretative obligations set out in section 3 of the HRA impacts all cases “civil or criminal, private or public, against private legal persons or public authorities” where a convention right is at stake. Prior to the Act, courts were permitted to solely use the Convention as an interpretive tool subject to express unequivocal Parliamentary intention to the contrary, which took precedence14. Now, the HRA imposes a statutory requirement that all legislation “must” be read and given accordingly with Convention Rights, so far as possible15. However, despite the unwillingness of the domestic courts to do so there are clearly cases that point towards an impossibility to interpret legislation compatibility with Convention rights16. This does not, however give courts in the UK power to strike down the Act or set it aside, thereby preserving the doctrine of Parliamentary supremacy in theory. When a higher court such as the House of Lords, Privy Council or Court of Appeal is satisfied that a provision is incompatible with the European Convention on Human Rights, it may under section 4(1) of the HRA grant a declaration of incompatibility to that effect. Although this declaration may trigger the taking of remedial action, it will not impact the validity or continuing enforcement of such a provision and it is not even “binding on the parties to the proceedings to which it is made”17. If we consider the case of Fitzpatrick18, a gay couple had lived together since 1976. After 10 years, Fitzpatrick’s partner had a stroke and Fitzpatrick became his carer until his death. Upon the death, Fitzpatrick wanted to continue living in the flat but the landlords refused. However, if Fitzpatrick had been a spouse or family member under the UK statutory definition, he would have had a protected tenancy and could have remained in the flat. Under the relevant Act the term“spouse” was defined as someone living with a tenant “as his or her wife or husband”. “Family” however was not defined in the Act at all, although there was precedent that the term should be construed as changing with the times19. Nevertheless, the Court of Appeal upheld the judgment of the Court of First Instance and stated that John and Martin were neither spouses nor family to each other. Legally speaking they were strangers. However, in the House of Lords, it was held that they came within the definition of family and commented that “the hallmarks of the relationship were essentially that there should be a degree of mutual inter-dependence, of the sharing of lives, of caring and love, of commitment and support” (per Lord Slynn20). However, with regard to the human rights angle, reference was made to decisions of the European Court of Human Rights in Strasbourg, which had not considered homosexual relationships falling within the right to respect for family life. Nevertheless, both Fitzpatrick and Ghaidan case referred to the relevant statutory provisions in each case being incompatible with Article 14 right of the Convention on grounds of discriminatory treatment of surviving same sex partners. As such, Mendoza is interesting in demonstrating that the HRA can permit lower courts to avoid previous and otherwise binding decisions of the House of Lords21. Moreover, this arguably demonstrates the increased powers of the judiciary in relation to statutory interpretation. However, such a liberal and optimistic view is arguably undermined as a false dawn as in the case of Bellinger v Bellinger22, the House of Lords were unable to use section 3 power in the HRA regarding rights of transsexuals under the Matrimonial Causes Act 1973. This further demonstrates the limitations of the use of the section 3 powers and the inherent difficulty to predict in what circumstances it will be used. Indeed overall, the courts have exercised the power of incompatibility sparingly23. A central part of the problem in the HRA’s applicability is the convention of Parliamentary supremacy, which is rooted within the British constitution as a fundamental limb of the separation of powers doctrine24. Furthermore, section 2 of the HRA implements an obligation for the British courts to take into account the case law of the ECHR, which has impacted the separation of powers doctrine as the judiciary is permitted to apply the principle of proportionality and the protection of human rights as protected by the Convention25. However, Lord Steyn warned that, proportionality allowed the courts to review such Acts that are incompatible with fundamental rights and was only permitted where there is strong evidence of irrationality26. Indeed, in the case of A v Home Secretary27, it was held that detention powers under the Anti Terrorism, Crime and Security Act 2001 were incompatible with the right to individual liberties under the ECHR, which is difficult to reconcile with the recent House of Lords decision in Al-Jedda v Secretary of State.28 The above analysis demonstrates that whilst the theoretical implications of the HRA as the most important piece of legislation in the UK cannot be underestimated, uncertainty still remains as to the extent of the EC law as a fetter on Parliamentary sovereignty. Moreover, the fact that the judiciary can merely determine whether rights have been breached arguably undermines the importance of the HRA as constitutional revolution for individual rights. Ultimately, it is far too dogmatic an assertion to brandish the HRA as an unconstitutional and anti-democratic Act. However, the decisions in Fitzpatrick and Mendoza highlights the long march that remains towards adherence to the ECHR into English law as the UK courts continue to take ambiguous decisions “somewhere in between”. BIBLIOGRAPHY H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). Greer Hogan (2002). Constitutional and Administrative Law. Sweet and Maxwell. A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. Legislation Human Rights Act 1998 Anti Terrorism, Crime and Security Act 2001 www.opsi.gov.uk Read More