Human Rights Act 1998 Review - Essay Example

Human Rights Act 1998 Introduction The courts, while attempting to interpret or apply legislation in conformity with the Convention, have to ensure the protection of Convention rights, embedded in the legislation. This has to be in a manner that produces the least disruption to the initial legislation and its purpose (Kavanagh, 2009, p. 70). One of the principal objectives of the HRA is to safeguard the sovereignty of Parliament. Albeit, courts can deem a statute to be incompatible with Convention rights, they cannot rescind primary legislation. This constitutes the gist of Section 4 of the HRA. When a public authority acts in an incompatible manner with the Convention rights, it has to demonstrate that the primary legislation’s provisions had prevented it from doing so (Crone, 2013, p. 271). As such, Sections 3 and 4 of the HRA provide a better and more inclusive class of judicial responses to statutory infringements of the Convention, in comparison to what Section 6, in isolation, provides in common law cases. A declaration of incompatibility is not feasible in common law cases. On the other hand, when such infringements cannot be rectified under Section 3 of the HRA, the courts can pronounce a declaration of incompatibility under Section 4 of the HRA (Kavanagh, 2009, p. 71). Section 3 Section 3 of the Human Rights Act 1998 (HRA) enjoins that primary and subordinate legislation have to be interpreted and implemented, to the extent feasible, in a manner that is compatible with the rights provided under the European Convention on Human Rights (ECHR). The interpretation of this Section is principally on the basis of the ruling in Ghaidan v Godin – Mendoza. During the pronouncement of their judgment, in this case, their Lordships employed the provisions of this Section to annul an interpretation provided by them to the Rent Act 1977. This decision had been given in Fitzpatrick v Sterling Housing Association (Smit, 2007, p. 294). Moreover, the employment of Section 3 of the HRA could compromise legal certainty for private individuals engaged in a legal relationship that is totally or partially subject to a statutory framework. For instance, in Ghaidan, the landlord, subsequent to their Lordships’ decision had been compelled to grant tenancy to the same gender partner of his deceased tenant. As pointed out by some critics, this decision had served to dilute the consensual aspect of the original relationship (Smit, 2011, p. 81). However, in the absence of explicit statutory preclusion, the courts will adopt a purposive approach and rule on the basis of Convention rights. As held in R v Lambert, the employment of Section 3 of the HRA has to acknowledge the intent of the legislature and uphold the integrity of statute law (Crone, 2013, p. 271). All the same it has been acknowledged that on occasion it would be indispensable to adopt an interpretation under Section 3 of the HRA that strains the verbal meaning, by taking the statute at its face value and by the implication of its provisions. The ruling in R v A (No 2) was illustrative of this situation (Crone, 2013, p. 271). As such, the body of jurisprudence pertaining to Section 3 of the HRA depicts an association betwixt the common and evaluative terms, and the successful abstract and deliberative elucidation. In R v Offen, the subject matter involved the Crime (Sentences) Act 1997. This Act at Section 2 provided for the imposition of life imprisonment for convictions involving a second serious offence. However, if there were exceptional circumstances, then life imprisonment was not to be imposed. These were held to be in existence whenever the circumstances pertaining to a specific offender were such that the latter did not constitute an unacceptable danger to the public (Smit, 2007, p. 305). In addition, the decision in R (Wilkinson) v IRC served to modify the line of approach adopted in Ghaidan v Godin-Mendoza, and to recommend that the courts were to isolate general and evaluative terms as indicators to uphold abstract purposive interpretation, under Section 3 of the HRA (Smit, 2007, p. 306). This modification improves legal certainty, as well as the legitimacy of the novel interpretative method. As illustrated in R v Secretary of State for the Home Department ex parte Anderson, the interpretative obligation under Section 3 HRA tends to be subject to restrictions. The House of Lords ruled that it could not interpret Section 29 of the Crime (Sentences) Act 1997, so as to exclude the role of the Home Secretary (Equality and Human Rights Commission, n.d.). Section 4 Section 4 of the HRA has been regarded as a last resort measure, due to the perception that a declaration of incompatibility by the courts serves to induce the Parliament to change the law. This situation has been illustrated in Pearson and Martinez, where a declaration of incompatibility was not issued by the court, in deference to Parliament. The HRA’s objective was to enable the courts to apply human rights principles to situations where they had been disallowed in the past (Klug, 2003). For instance, in R (Pearson & Martinez) v Home Secretary which concerend the voting rights of prisoners, the court was markedly reluctant to determine whether the related legislation infringed the ECHR. All the same, the HRA was specifically drafted to permit the free flow of opinions from the judiciary on any issue. Such freedom was granted in the knowledge that the courts would not engage in altering the law and that Parliament could ignore Incompatibility Declarations, whenever it wished (Klug, 2002, p. 6). Section 6 Section 6(1) HRA obliges public authorities to act in compliance with the Convention’s provisions. The exceptions permitted are; first, when there is a primary legislation that requires the public authority to act differently, this is the gist of Section 6(2)(a) HRA. Second, when enforcement of statutory provisions proves to be incompatible with the Convention, which has been provided under Section 6(2)(b) HRA (Crone, 2013, p. 271). In addition, the public authority can also demonstrate that its actions were aimed at enforcing a statutory provision that could not be interpreted in a compatible manner with the rights provided under the Convention. If the public authority fails to establish one of these grounds, it will be deemed to have acted in an unlawful manner (Crone, 2013, p. 271). In R(GC) v Commissioner of Police for the Metropolis, the UK Supreme Court scrutinised the validity of indefinite retention of DNA samples, by the police, of individuals who had not been convicted of a crime. This retention was under Section 64(1A) of the Police and Criminal Evidence Act 1984 (Equality and Human Rights Commission, n.d.). This scrutiny was occasioned by the ruling of the European Court of Human Rights (ECtHR) in S and Marper v United Kingdom. It was held that Article 8(2) of the European Convention on Human Rights (ECHR) had been infringed due to the indefinite retention of DNA samples of people who had not been convicted of a criminal offence (Equality and Human Rights Commission, n.d.). Despite the enactment of the Crime and Security Act 2010, the Association of Police Officers had not discontinued its previous guidelines, which provided for the indefinite retention of samples. The UK Supreme Court deemed this to be illegal. However, it did not direct the police to comply with the ECtHR ruling, as Parliament had not made any change to the legislation. Moreover, the new Act had not been made effective (Equality and Human Rights Commission, n.d.). Conclusion Section 3 of the HRA imposes the responsibility of interpreting legislation in a manner that gives effect to Convention rights upon the courts. The courts have, by and large, upheld the intention of Parliament regarding the protection of Convention rights, while using Section 3. A major and innovative aspect of the HRA is the declaration of incompatibility under Section 4. This can be exercised only by the superior courts and only when all other efforts to interpret legislation in compliance with the Convention prove to be futile. With regard to Section 6 of the HRA, it has been usually quite difficult to categorise certain varieties of functions as public. It is the considered opinion of this writer that Section 4 of the HRA is the most effective provision in safeguarding the rights of the citizens. This is because courts can declare a legislation to be incompatible, if the provision, in question, cannot be interpreted in compliance with the Convention. This declaration of incompatibility constrains the legislature to amend the law, in a manner that makes it compliant with the Convention. References Crime (Sentences) Act (c.43) , 1997. London, UK: Her Majestys Stationery Office. Crime and Security Act (c.17), 2010. London, UK: Her Majestys Stationery Office. Crone, T., 2013. Law and the Media. 4 ed. Burlington, MA, USA: CRC Press. Equality and Human Rights Commission, n.d. The case for the Human Rights Act. [online] Available at: [Accessed 2 March 2014]. Fitzpatrick v SterlingHousing Association (2001) 1 AC 27. Ghaidan v Godin – Mendoza (2004 ) UKHL 30. Human Rights Act 1998. (c. 42), London, UK: Her Majestys Stationery Office. Kavanagh, A., 2009. Constitutional Review under the UK Human Rights Act. Cambridge, UK: Cambridge University Press. Klug, F., 2002. The United Kingdom Experience. [online] Available at: [Accessed 3 March 2014]. Klug, F., 2003. Judicial Deference under the Human Rights Act 1998. [online] Available at: [Accessed 2 March 2014]. Police and Criminal Evidence Act (c.60), 1984. London, UK: Her Majestys Stationery Office. R (Pearson & Martinez) v Home Secretary (2001 ) HLRL 39 . R (Wilkinson) v IRC (2005) UKHL 30. R v A (No 2) (2001) UKHL 25. R v Lambert (2001) UKHL 37. R v Offen (2001) 1 WLR 253 (CA). R v Secretary of State for the Home Department ex parte Anderson (2002 ) UKHL 46. R(GC) v Commissioner of Police for the Metropolis (2011) UKSC 21. Rent Act (c.42), 1977. London, UK: Her Majestys Stationery Office. S and Marper v United Kingdom (2008) ECHR 1581. Smit, J. v. Z., 2007. The New Purposive Interpretation of Statutes: HRASection 3 after Ghaidan v Godin – Mendoza. Modern Law Review, 70(2), pp. 294 – 317. Smit, J. v. Z., 2011. Statute Law. In: D. Hoffman, ed. The Impact of the UK Human Rights Act on Private Law. Cambridge, UK: Cambridge University Press, pp. 66 – 90. The Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Rome, Italy: Council of Europe. Read More