The Impact of the Human Rights Act 1998 on English Law - Coursework Example

1) Critically assess the impact of the Human Rights Act 1998 on English law. The implementation of the Human Rights Act 1998 (HRA) was heralded by the Lord Chancellor as having “a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights”.1 By implementing the ECHR into domestic law, the HRA clearly impacts and changes the constitutional landscape of the UK. The HRA incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states 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 freedoms2. Prior to 1998 there had been no British constitutional statement regarding basic human rights similar to those found in the constitutional provisions of other democracies3. This new human rights “Charter” now has direct legal effect and protection in the UK. The HRA has been labelled as one of the most important domestic legal developments for a generation because it is the closest the UK has come to acknowledging a written charter of guaranteed fundamental freedoms, which must be considered and protected under national law4. 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 Rights5. Moreover, whilst the HRA does not in fact implement any Bill of Rights as such, section 3(1) does impose a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly from a law making perspective 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 courts6”. If we consider these developments regarding the tension between Community law and national sovereignty in context of the HRA, the UK courts have a positive duty to apply Convention rights. As such, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Prior to the implementation of the HRA, the function of the courts in relation to Parliamentary legislation was limited to the interpretation and application of that which was placed before them7. The ECHR was not directly applicable to the English legal system. Even domestic courts had no jurisdiction to address human rights issues and citizens were required to bring expensive claims directly to the European Court of Justice (ECJ) in Strasbourg8. Prior to the implementation of the HRA, the courts would exploit uncertainty in existing legal principles to incorporate Convention rights through the backdoor on public policy grounds9. For example, in the case of Waddington v Miah10, 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 HRA11. Moreover, Parliament was free to remove or control individual liberties at any time by passing appropriate legislation. For example, in the case of Malone v Metropolitan Police Commissioner12, it was asserted that there was no right to privacy in English law, which conflicts with the current legal position under the HRA. In the Malone case, the complaint regarding phone tapping during a police investigation was not upheld as there was no recognised right to privacy law in the UK. Conversely, this was held to be in direct contravention of the European Convention on Human Rights in Strasbourg. The direct incorporation of the ECHR into national law arguably goes further whereby the role of the judiciary is to act as guardian to individual human rights, which clearly shifts the dynamic in the lawmaking process13. 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 incompatibility14. This effectively, reverses the previous situation whereby Parliament could enact any legislation to prevent the judiciary from incorporating human rights principles de facto on public policy grounds. This arguably creates a shift in power from the legislator to the court, blurring the distinction between the constitutional separation of powers. Previously, the judiciary would exploit gaps or ambiguity in legislation to grant human right protection through the back door. However, Parliament could always overturn such decisions by enacting retrospective legislation. 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 individuals15. 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”16. On this basis, whist the HRA enables courts to rule a legislative provision is incompatible with the rights protected by the Convention; the principle of parliamentary sovereignty prevents courts from holding that provision invalid. As such, this clearly begs the question as to how efficacious the HRA is in protecting the fundamental freedoms guaranteed by the HRA. 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 precedence17. Now, the HRA imposes a statutory requirement that all legislation “must” be read and given accordingly with Convention Rights, so far as possible18. As such, this fuels the current debate regarding implied repeal, thereby further eroding the constitutional notion of Parliamentary sovereignty. Nevertheless, it is submitted that the HRA is not undemocratic and unconstitutional per se, however there is clearly a risk of it becoming undemocratic if not applied consistently. Lord Cooke of Thornton commented on the legal significance of the HRA by asserting “section 3 will require a very different approach to interpretation of that to which the English Courts are accustomed. Traditionally the search has been for the true meaning that would prevent the making of a declaration of incompatibility”19. Conversely, the new interpretative positive obligation provides one of the most essential components to protect human rights from being abused20. Section 3 applies to both primary and secondary legislation and legislation whenever enacted”. Indeed, R v A21 is often cited as a being of central importance for demonstrating applicability of the Section 3 obligation retrospectively22 and involved interpretation in a difficult and controversial legal area. In this case, the defendant was on trial for rape. The defendant wanted to admit evidence pertaining to a previous consenting sexual relationship with the victim, however section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibited this kind of evidence being adduced in order to protect a complainant’s private life23. The House of Lords held that the judge had a power under section 3 of the HRA, to allow such evidence to be adduced if its exclusion would result in an unfair trial for the accused. Lord Steyn asserted that “on ordinary methods of interpretation” section 41 did stop the trial judge from allowing the accused to use past evidence in the rape trial24. However, Lord Steyn went on to add that section 3 of the 1998 Act “applies even if there is no ambiguity in the language in the sense of being capable of two different meanings”25. The HOL further asserted that the court had a duty to interpret section 41 in a way, which protects the accused human rights. This further strengthens the importance of section 3 of the HRA and reinforces its powerfulness in interpreting legislation. Similarly in the case of Ghaidan v Mandoza26 the House of Lords held that it was possible to set for the long established habitable meaning of the Act to make it compatible with Convention rights. 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 rights27. 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”28. To date, the courts have exercised the power of incompatibility sparingly29. A prime example is the case of Alconbury Developments Limited and others v Secretary of State for the Environment, Transport and Regions30. In this case, a declaration of incompatibility was granted in respect of the primary planning legislation that allowed a minister to determine the outcome of planning appeals in which he had a policy interest, but this was set aside on appeal to the House of Lords under the HRA. Another case is Bellinger v Bellinger31 where a declaration of incompatibility was declared by denying transsexuals rights to marry. 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 Convention32. 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 irrationality33. Indeed, in the case of A v Home Secretary34, 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. The obligation to take EC court decisions into account under section 2 of the Act also impacts traditional principles of judicial precedence, which effectively means that after the HRA came into force, the decisions of the ECHR will need to be taken into account35. Moreover, section 3 enables domestic courts to depart from the traditional method of interpretation of legislation. Whilst some may argue that this encroaches upon the Executive and is unconstitutional in undermining the separation of powers; it arguably expands the independence of the judiciary in reaching their decision. Simultaneously, the judiciary’s wider role further refers to the direct intention of Parliament that all legislation be compatible with the Convention rights, thereby preserving Parliamentary sovereignty. Moreover, the HRA clearly redefines the general legislative process of the sovereign Parliament36. Under section 19 of the HRA a minister in charge of a bill would be required to make a statement of compatibility prior to the Bill’s second reading. This statement should indicate whether or not the proposing Bill complies with protected Convention rights. In this manner, section 19 would appear to be anti-democratic and unconstitutional by impinging on sovereignty of Parliament in order to comply with Convention rights. However, there are clearly limitations and the practical reluctance of national courts to make declarations of incompatibility has led to artificial interpretations of legislation to preserve the appearance of compliance with Convention rights. This is further limited by the fact that only higher courts have power to declare incompatibility under Section 4. Alternatively, the HRA is viewed as encroaching safeguards for individuals in restricting Parliamentary law making powers, as evidenced by the Anti-Terror law moves and there is clearly need to strike a balance. From this perspective, the HRA would clearly appear to remain “constitutional” as Parliament can still change the HRA or enact new legislation to overrule it37. Indeed Lord Steyn declared that, “it is crystal clear that the carefully and subtly drafted HRA preserves the principle or parliamentary sovereignty”38. 2) Contract Law Problem Question In order to advise Paul with regard to Richard’s potential claim it is necessary to evaluate the following: 1) Whether there was in fact a legally enforceable contract between Paul and Richard; 2) If there was a legally enforceable contract, the legal implications for Richard if revocation is found to constitute breach of contract. The law of contract stipulates three fundamental requirements for the formation of a legally enforceable contract; namely; offer, acceptance and consideration (it is important to note that contracting parties must have legal capacity to enter into a contract and it is presumed from the facts given that capacity is not an issue in this case due to the previous negotiations for the sale of claret). Lord Wilberforce presiding in the case of New Zealand Shipping Co Limited v A M Satterhwaite, The Eurymedon39 asserted the rule for contract formation thus: “English law having committed itself to a rather technical…… doctrine of contract, in application takes a practical approach……. Into the market slots of offer, acceptance and consideration40. An “offer” in the context of contract law has been described as “an expression of willingness to contract on certain terms, made with the intention that it shall become binding as soon as it is accepted by the person to whom it is addressed, the “offeree.41” The “expression42” may take different forms and Paul’s letter indicating an offer to sell will clearly satisfy this. The intention element is an objective consideration and the case of Smith v Hughes 43emphasised the relevant consideration as being a focus on how a reasonable person would view the situation. Furthermore, the law distinguishes between an offer and an invitation to treat, which is not an offer but an indication of willingness to negotiate a contract44. For example, in the case of Gibson v Manchester City Council45, the words “may be prepared to sell” constituted an invitation to treat and not a distinct offer. Indeed, the Gibson decision challenged the traditional view for formation of contractual agreement. In this case, Lord Denning asserted that when considering whether there is a binding contractual agreement, it could be argued that “there is no need to look for strict offer and acceptance. You should look at the correspondence as a whole and at the conduct of the parties and see therefore whether the parties have come to an agreement on everything that was material46”. However, there has been some uncertainty in this area of law as evidenced by the case of Carlil v Carbolic Smoke Ball Limited47. In this case, the defendant was the proprietor of a medical substance and placed and advert in the Pall Mall Gazette promising to pay $100 to anyone who used the carbolic smoke ball for two weeks and who for a limited time after contracted the flu virus. Carbolic Smoke Ball Limited argued that the advert did not constitute an offer but was rather an invitation to treat. The Court of Appeal rejected this argument and held that there was a legally enforceable contract. The advertisement constituted an offer to the whole world and was capable of amounting to an offer of a unilateral contract without the requirement for acceptance. The Carlil decision had far reaching implications for contract law, with some commentators arguing that there is no difference between an “invitation to treat” and a contractual “offer”48. However the facts of the current scenario suggest that Paul’s letter was a distinct offer to sell with the offer being open for a limited period of time until 12th April. The issue of contention here is the timing and method of acceptance and Paul’s sale of the claret to another wine dealer was valid and not in breach of contract. Valid acceptance in law follows a valid offer and the formation of a contract follows immediately. Furthermore, valid acceptance is final and unqualified acceptance of an offer as demonstrated in the case of Peter Lind Limited v Mersey Docks & Harbour Boar49, highlighting the “mirror image” rule, where acceptance must be unequivocal and unconditional, therefore acceptance must “mirror” the offer. Moreover, acceptance is a “final and unqualified expression of assent to the terms of an offer”50. However, the changing nature of contemporary contracting means that the appropriate form of acceptance will ultimately depend on the individual nature of contractual negotiations51. Richard firstly telephoned Paul’s office and Paul was away and did not receive the message. Alternatively, Richard wrote to Paul on to communicate acceptance of the offer and the letter was sent on 5th April to confirm acceptance. As such, the general presumption as illustrated in the case of Adams v Lindsall52 is that if post was the normal and anticipated method of acceptance, then the contract will be formed when the letter is posted and not when it is received by the offeror. If we apply these principles to the current scenario, Paul’s offer was unequivocal in stating that the form had to be accepted by the 12th April using a form that Paul had sent. However, the original letter sent by Richard on 5th April did not enclose the form. Nevertheless, Richard realised this error by the 11th April and on 11th April he sent the form specified by Paul in the post. Accordingly, in line with the postal rule, Richard would have validly accepted the offer in accordance with the rules of acceptance on 11th April, thereby creating a binding contract. However, in the meantime, Paul sold the entire stock that was under offer to Richard to another dealer, which raises the issue as to whether Paul is in breach of contract. Whilst the general principle of contract law enables an offeror to revoke an offer before it has been accepted53, revocation must be communicated to the offeree prior to acceptance54. In the current scenario, Paul did not communicate a revocation of the offer to Richard and his letter of acceptance in the form required completed the formation of contract as soon as it was posted in line with the terms of the offer letter of the 4th April. Accordingly, Paul’s sale of the stock to another dealer constitutes breach of contract55. There are a variety of remedies available at law for breach of contract and the most common form is a claim for damages for loss caused by breach. To succeed, Richard would have to establish that it suffered loss as a result of the breach and that the loss was not too remote. The principles of remoteness were set out in the case of Hadley v Baxendale56, which provided that that following losses are recoverable: 1) All losses flowing as a natural consequence of the breach; and 2) All losses which were in the contemplation of the parties at the time the contract was made. This rule has been interpreted to mean that only loss which is within the reasonable contemplation of the parties can be recovered57. In the current scenario, it may be difficult for Richard to prove significant actual loss suffered. Alternatively, Richard may be able to claim for reliance loss where the objective is to place the innocent party into the position they would have been in had the contract never been made58. Based on the facts provided, the costs at this stage would be minimal and Richard would have a duty to mitigate loss also59. However, an alternative remedy may be specific performance. The basis of specific performance is rooted in the premise that “it would be unjust to permit the defaulting party simply to buy out the injured party with damages60”. An order for specific performance requires performance of the contract and although generally restricted in practice due to the notion of mutuality of obligations61. In summary, unless Paul can establish that it had specified in its letter that the offer to sell the land was conditional or was expressed as an invitation to treat instead of a formal offer, it will have a legally enforceable contract with Richard for the sale of the claret stock. The sale of the product to another dealer will constitute breach as revocation of the offer was not communicated to Richard prior to their acceptance by post. Any damages would be nominal however and Richard will have a positive duty to mitigate any loss. 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 Chitty on Contracts (2007). 29th Edition Sweet & Maxwell. Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). 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 Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. Franz C Mayer (2005) Competences- Reloaded? The vertical division of Powers in the EU after the New European Constitution, 3 the Journal of International Constitutional Law 493. G H. Treitel., (2007). The Law of Contract. 12th Revised Edition Sweet & Maxwell. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. www.opsi.gov.uk Read More