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

Critically evaluate the impact of the Human Rights Act 1998 on individuals. The implementation of the Human Rights Act 1998 (HRA) theoretically strengthens individual rights by enabling UK citizens to enforce fundamental freedoms under the European Convention on Human Rights (ECHR). Some commentators have argued that the HRA is the first significant move in the UK towards implementing a constitutional Bill of Rights through the direct effect of the ECHR rights under national law1. Furthermore, section 2(1) of the HRA provides 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 Rights2. Additionally, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”3. Therefore, individuals can rely on the provisions of the HRA to address ECHR rights directly in national courts and the focus of this analysis is to critically evaluate the impact of the HRA on individuals. In doing so, I shall consider specific Articles of the ECHR and how they have impacted individuals in the UK and certain sections of society. Firstly, if we consider the rights of homosexuals, lesbians and transsexuals and Article 8 of the ECHR is relevant to this particular section of the community. Article 8 of the ECHR specifically deals with the right to privacy, and the approach of the European Court of Human Rights in Strasbourg has used Article 8 to address matters of sexual privacy, which has led to incidental protection of homosexuals and transsexuals. If we consider the European case law, in Dudgeon v United Kingdom4 for example, the Court stated that the right to private life under Article 8 included the right to enjoy one’s private sexual life. The result of this was that the Northern Ireland law prohibiting certain sexual activities between men was held to be in breach of Article 8. The court further held that an individual’s sexual life was an intimate aspect of their private life and that strong justification had to be provided to interfere with this right. The court pointed out that societal disapproval of homosexuals was not a sufficient reason to justify interference with ECHR rights. Similarly, in the leading case of Smith and Grady v United Kingdom5 it was held that the dismissal of armed forces personnel due to their sexuality constituted a disproportionate interference with their right to respect for private life6. However the court has not always been so interventionist and it ultimately depends on the nature of the act when addressing the “margin of appreciation” principle. For example, in the case of Jaggard and Brown v United Kingdom7, the Court upheld the applicant’s convictions for participating in consensual acts of sadomasochism highlighting that not every private sexual act would be covered by Article 8 right. Nevertheless in the case of ADT v United Kingdom8, it was held that the state’s margin of appreciation will be limited where the criminal law has been exclusively utilised as a tool against a particular group on grounds of their sexual orientation9. Additionally, in the case of Sutherland v United Kingdom10, the ECHR held that the lack of equivalency in the age of consent in the UK regarding homosexual sex was in violation of Article 8 and Article 14. Article 14 of the ECHR provides that the enjoyment of Convention rights and freedom shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion. Furthermore, the interpretation of the ECHR has been extended to confer protection to transsexuals. Whilst earlier ECHR cases refused to interfere with domestic law that had prevented transsexuals from marrying and changing legal status; in the landmark decision of Goodwin v UK11, it was held that there had been violation of Articles 8 and 12 of the ECHR where the applicant had complained that they could not exercise their right to marry under Article 12 of the ECHR. In considering the practical application of ECHR case law to the rights of individuals in the UK as a result of the HRA 1998; as stated above, 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”12. Additionally, national courts have to ensure that national law is compatible with ECHR rights in application. 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 interpretation13. Therefore on the one hand, it is arguable that the HRA 1998 goes further in protecting individuals by ensuring that courts apply the ECHR and look out for conflicts with potential ECHR issues14. As such, Bradley argues that the HRA has set a new standard for post 1998 legislation particularly in light of the obligation on courts to make declarations of incompatibility under section 4(2) of the HRA15. Conversely, the courts are limited to making declarations of incompatibility and cannot change law, which is within the scope of Parliamentary powers. This in turn has led to criticisms of how far the HRA goes to protecting individual rights. Nevertheless, if we consider this directly in relation to the rights of transsexuals and homosexuals, the post-HRA case law demonstrates that the national courts appear to applying the European case law principles, which in turn has strengthened individual rights. For example, in the case of Bellinger v Bellinger16 it was held by the House of Lords that it was impossible to interpret “man and woman” as person who had undergone gender reassignment to comply with the Goodwin decision. Additionally, in the case of Mendoza v Ghaidan17 the House of Lords interpreted the statutory term “wife or husband” to include same sex couples. The result of this decision was to give same sex couples the right to inherit a partner’s tenancy to comply with Article 14 of the ECHR. Interestingly, the House of Lords declared in the Bellinger case that a refusal to recognise a transsexual’s post operative gender was contrary to Articles 8 and 14 of the ECHR. Additionally, the wave of European decisions relating to transsexuals has culminated in the implementation of the Gender Recognition Act 2004, which now regulates these rights. As such, domestic law is certainly adjusting specific privacy claims to address the rights of transsexuals and homosexuals and forcing the UK courts to address compatibility seriously in light of the ECHR jurisprudence. Alternatively, with regard to the rights of religious expression, Article 9 of the ECHR provides that everyone has the right to freedom of religion, which includes the right to change one’s religion. The Article further provides a right of an individual whether in public or in private to manifest their religion or belief in worship, teaching, practice and observance. Nevertheless, this aspect is conditional and subject to article 9(2) which provides for justifiable interferences with Article 9 as prescribed by law and necessary in a democratic society, in the interests of public safety, the protection of public order, health or morals or protections of the rights of others. To this end, the European Court of Human Rights has acknowledged that in certain societies where various religions co-exist, it may be necessary to place restrictions on the right to manifest one’s religion in order to ensure everyone’s beliefs are respected. This is further bolstered by Article 17 of the Convention, which permits restrictions where the aim is the destruction of other person’s Convention rights. Firstly, the relationship of the Article 9 rights with other ECHR rights is evidenced in the case of Kokkinakis v Greece18 where the ECHR asserted that the Article 9 right as regards religion was one of the most vital elements to go to make up identity of believers and therefore this would give special protection to religious views over and above other democratic rights under the ECHR19. Moreover, in the Kokkinakis decision, the ECHR asserted that the Article 9 right was just as important to protecting the rights of atheists, agnostics and the unconcerned. Therefore the category of individuals covered by the Article 9 right is extremely wide. Additionally, Article 9 is a freestanding right under the Convention and directly related to this is the prevention of religious persecution based on beliefs. However, it is important to note the limitations of Article 9 right. For example, in the case of Arrowsmith v UK20 it was held that whilst pacifism was a philosophy protected by Article 9, it did not constitute an absolute right of religion under Article 9 and therefore the distribution of leaflets did not count as a “manifestation”21. Nevertheless, the European Court’s approach has highlighted that any interference with the right to manifest one’s religion or beliefs will be in violation of Article 9 unless the interference is prescribed by law and necessary in a democratic society for the achievement of one of the legitimate aims specifically laid down in Article 9(2). Conversely, the ECHR has implemented a wide margin of appreciation in cases where the manifestation of religious or other views are inconsistent with fundamental democratic features of society, which has often impacted the workplace and educational establishments in particular. For example, in the case of Kalac v Turkey22 the Court found that dismissal of an applicant from the armed forces for voicing religious views conflicting with national principles of secularism was justified under Article 9. Additionally, in the case of Sahin v Turkey23 the Court held that suspension of a student on grounds of her wearing the Muslim Hijab did not violate her rights under Article 9. The controversial decision was based on the proportionality rationale that a ban on religious headgear was necessary to preserve rights of others and the secularity of the country’s educational institutions. As such the national courts have been willing to dilute the Article 9 right under a margin of appreciation, which arguably undermines a state’s obligation to uphold protections under Article 9. In the UK, the tension between the Article 9 right and societal interests came to a head in the case of R (Begum) v Denbigh High School24where the applicant argued that the school’s uniform policy preventing the wearing of the Muslim hijab contravened Article 9. The applicant further relied in Article 2 of the First Protocol to the ECHR guaranteeing the right to education in conformity with a parent’s religious convictions. The Court of Appeal argued that the interference with the Article 9 right could not be justified however the House of Lord (HOL) held that the applicant had not been excluded on religious grounds but for failure to comply with a uniform school policy. As such, the HOL argued that the relevant test was whether the policy struck a fair balance between the girl’s interests and the interests of others including the school and other pupils. On this basis, the HOL felt that the policy accounted for all religions and that in general courts should not intervene in such cases25. Similarly, in R (Playfoot) v Millais School Governing Body26 the court followed the HOL decision in the Begum case with respect to a decision by the school to refuse permission to a school girl to wear a purity ring to display her commitment to celibacy before marriage. With regard to freedom of religion in the workplace, the position of individuals appears to be stronger than cases involving schools. For example, in the case of Dubowksa and Skup v Poland27 it was held that Article 9 imposed a positive obligation on the state to permit individuals to manifest and enjoy their beliefs without interference. This has been taken to give Article 9 horizontal direct effect against employers. For example, in Ahmed v United Kingdom28 the European Commission agreed that employers should not place restrictions on employee’s right to manifest religion, subject to contractual obligations. Ultimately it will depend on the terms and conditions of employment and in the case of Stedman v United Kingdom29, the European Commission held that applicants had accepted reasonable restrictions on the right to manifest religion depending on the employment terms and conditions. In this case there was no violation of Article 9 for dismissing someone who refused to work Sundays. Alternatively, UK discrimination legislation has further bolstered the position of employee’s with regard to the freedom to religious expression. For example, employees suffering from religious discrimination can potentially bring a claim for race discrimination. Section 3 of the Race Relations Act 1976 (RRA) forbids discrimination on grounds of “colour, race, nationality and ethnic or national origin”. The legislation also prohibits discrimination at all stages of employment, ranging from arrangements as to who should be offered employment to dismissal or any other detriment30. With regard to what constitutes discrimination, there is a distinction between direct and indirect discrimination and section 1 of the RRA defines direct discrimination as less favourable treatment on “racial grounds”. Section 4(2) of the RRA further requires that such racial discrimination must result in an adverse consequence. However, rights to bring a claim for indirect race discrimination are inherently limited and applicants have to establish that they are part of an ethnic group and that the discrimination is on grounds of his race in order to incidentally protect the right to religious expression. The RRA does not define “race or ethnic group”, however in the leading case of Mandla v Dowell Lee31the House of Lords held that in considering the definition of ethnic group it had to be “identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs…. And characterised by a common past….they have a distinct social identity based on their historical antecedents32”. Additionally, this difficult is further perpetuated by the legal burden of proof. The issue of burden of proof in racism cases was addressed in the Court of Appeal decision in King v Great Britain-China Centre33, where it was held that the burden of proof is ultimately on the application to prove race discrimination, however inferences may be drawn from the facts, Nevertheless section 32 of the RRA provides that an employer is liable for acts of employees done in the course of their employment, whether or not done with the employer’s knowledge or approval. The Court of Appeal addressed the definition of acts done “in the course of employment” for the purposes of employer liability under the RRA in the case of Jones v Tower Boot Company34. The Court of Appeal distinguished between statutory formulation under the RRA and the common law test for vicarious liability in tort and asserted that it was not appropriate to treat the two tests as identical. The Court of Appeal asserted that the term “in the course of employment” should be given its natural meaning and not the technical meaning used in relation to vicarious liability. This widened the scope of employer liability on grounds of policy justifications that the doctrine of vicarious liability would result in employer’s escaping liability the more serious the harassment became, which would undermine the purpose of the RRA protection35. Alternatively, the HRA provisions have arguably brought the issue of religious expression in the workplace to the fore and address the deficiencies of the race relation provisions. For example, in December 2003, the Employment Equality (Religion or Belief) Regulations came into force and prohibit discrimination and harassment in employment on grounds of religion or belief. As such, an employee has the right not to be treated less favourable that other employees on the basis of her religion or belief, or her perceived religion or belief. Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment having regard to all the circumstances and the perception of the victim36. Moreover, an organisation by virtue of being the employer is required to protect employees from discrimination on grounds of religious beliefs. Indeed, the ACAS Code on “Bullying and harassment at work: guidance for employees” (the Code)37 provides guidance on what constitutes bullying and harassment in the workplace and employers are now liable if failure to protect employees from third party harassment is unreasonable38. In conclusion, this analysis demonstrates that the importance of the HRA 1998 in forcing national courts to take account of ECHR rights cannot be underestimated. In particular, the application of section 3 of the HRA 1998 has been instrumental in strengthening the individual rights of minorities, particularly in the gay, lesbian and transsexual community. Nevertheless, the margin of appreciation afforded by the HRA 1998 has resulted in inconsistency in application with qualified application for ECHR rights in certain circumstances. This is particularly evident with regard to the right to religious expression. Accordingly, this analysis demonstrates that whilst the Article 9 right is of extreme importance to religious expression, in practice the courts have adopted a liberal approach offering a wide degree of appreciation. This has enabled national courts a wide degree of leeway in balancing religious rights against other social interests, which has created controversy particularly in schools as regards uniform policy. Arguably, the position of employees in the workplace as regards religious expression is strengthened. Conversely, whilst it is submitted that a degree of flexibility and proportionality is necessary, this may leave certain religious and minority groups exposed to lack of adequate protection. BIBLIOGRAPHY ACAS (2007). Bullying and harassment at work: guidance for employees. London: ACAS available at www.acas.org.uk accessed 28 May 2009. A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Gwyneth Pitt (2007) Employment Law. 6th Revised Edition. Sweet & Maxwell. R Smith (2007). Textbook on International Human Rights. 3rd Edition Oxford University Press. Stone (2006). Textbook on Civil Liberties and Human Rights. 6th Edition Oxford University Press. Legislation & Websites Race Relations Act 1976 Human Rights Act 1998 www.opsi.gov.uk www.publications.parliament.ul Read More