The Human Rights Act 1998 Contributes to the European Convention of Human Rights into UK Law - Coursework Example

ENGLISH LEGAL SYSTEM Introduction The Human Rights Act 1998 contributes to the European Convention of Human Rights (the ECHR) into UK law. This impacts the way in which judicial suits can be reasoned in court, since courts and tribunals are expected to give effect to the Convention rights listed in the Act. However the Act also identifies new responsibilities on Parliament and Government to legislate in agreement with the Convention. Article 9 of the European Convention on Human Rights states that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” Qualified Rights: The rights that have the maximum affect on the everyday life of the mass in UK are qualified rights. They are the right to respect for private and family life, the right to freedom of expression, religion and association, the right to the peaceful enjoyment of property and to an extent, the right to education. Qualified rights are dependent on what looks like open-ended and lossely-defined qualifications they look for reorganisation, and try to balance challenging interests within the community; and also to differentiate minority and majority rights. This balance gives the biggest challenge to policy-makers, law-makers, and judges. Actually Qualified rights have a two stage structure and they are: The first asserts the right; The second makes out the allowable qualifications. The qualifications are again broadly divided into- Any restriction should have its base in law and these limitations has to be the only way to democratic society which means that meddling with the right has to be the only way to attain the intention, and must be relative to the injury that would ensue and also it must be linked to an allowable aim set out in the appropriate Article. R (Begum) v Governors of Denbigh High School [2006] 2 All ER 487 The brief facts of the case is: The respondent, Shabina Begum, argues that the appellants, who are the head teacher and governors of Denbigh High School in Luton (“the school”), barred her from that school, inexcusably limited her right under article 9 of the European Convention on Human Rights to manifest her religion or beliefs and dishonoured her right of not to be deprived of education under article 2 of the First Protocol to the Convention. The first premise in the case is a sin of omission, since it concentrates on the question of how the courts should react when an agency has not deliberately set about the taking of the verdict under review by a framework of rights. It covers the question: do public authorities at the moment have to glance at all significant conclusions through the prism of the European Convention? The issue was central in the Denbigh High School case. Bennett J, ruling on the respondent’s request for judicial appraise, at first, cast off all these contentions: [2004] EWHC 1389 (Admin); [2004] ELR 374. The Court of Appeal (Brooke, Mummery and Scott Baker LJJ), overriding the judge, consented each of them: [2005] EWCA Civ 199; [2005] 1 WLR 3372. The appellants, with back up from the Secretary of State for Education and Skills as mediator, put forward that the judge was right and the Court of Appeal wrong. By overturning the first instance judgment1, the Court of Appeal held that the right of Begum to the religious freedom under Article 9 ECHR had basically been violated. Along with this the School authorities had slipped and failed to regard her case in a most befittingly reactive manner. More specifically, they had not even applied a full-scale based proportionality analysis to the case on hand. The law basically stated that the School did not approach the matter in the way it ought to have. The case was not considered from the main premise that the claimant had the basic right recognized by the English law. The Court of Appeal held that “The School did not approach the matter in this way at all. Nobody who considered the issues on its behalf started from the premise that Lord Bingham remarked that “The focus of decision-making under the HRA, he said, the claimant had a right which is recognised by English law, and that the onus lay ----------------------------------------------------- 1([2004] EWHC 1389 (Admin); [2004] E.L.R. 374) on the School to justify its interference with that right2. Nothing in this judgment should be taken as meaning that it would be impossible for the School to justify its stance if it were to reconsider its uniform policy in the light of this judgment.” was not on whether a decision is the product of a defective process, but on whether the applicant’s rights have been violated. Proportionality must be judged objectively by the court, and a procedurals approach would introduce a new formalism into administrative practice. Lord Hoffmann’s criticism was more direct: Article 9 is concerned with substance, not procedure and it confers no right to have a decision made in any particular way. “What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2?” Public authorities – in this instance, head teachers and school governors – “cannot be expected to make such decisions with textbooks on human rights law at their elbows3.” Justification of the case It was barely debated for the respondent that the school’s uniform guidelines was not set by law, but both the judge and the Court of Appeal held otherwise, and justly so. The school establishment had legal authority to lay down their regulations on uniform, and those rules were very plainly communicated to those involved in them. It was not ----------------------------------------------------- 2R (SB) v. Head teacher and Governors of Denbigh High School [2005] EWCA Civ 199; [2005] 2 All E.R. 396, at [75]: according to Brooke L.J., the structure of process of decision-making should have taken the following line: “Has the claimant established that she has a relevant Convention right which qualified for protection under Art. 9(1)? (2) Subject to any justification that is established under Art. 9(2), has that Convention right been violated? (3) Was the interference with her Convention right prescribed by law in the Convention sense of that expression? (4) Did the interference have a legitimate aim? (5) What are the considerations that need to be balanced against each other when determining whether the interference was necessary in a democratic society for the purpose of achieving that aim? (6) Was the interference justified under Art. 9(2)?” 3 Ibid., at [76] (per Brooke L.J.). For critical analysis of this decision, see T. Poole, “Of Headscarves and Heresies: the Denbigh High School Case and Public Authority Decision-making under the Human Rights Act” [2005] P.L. 685. proposed that the rules were not set for the legitimate reason of defending the rights and freedoms of others. So the matter is whether the rules and the school’s pressure on them were in all the state of affairs balanced. This calls forth a key practical question on the court’s approach to proportionality and, counting on the answer to that, a question of substance. In Para 75 of his most important judgment in the Court of Appeal, Brooke LJ laid down a chain of questions to be enquired and responded by a decision-maker when settling an issue brought up under article 9. He observed (Para 76) that “the school did not approach the matter in that way at all. Since, therefore, the school had approached the issues from an entirely wrong direction, it could not resist her claim for declarations that it had wrongfully excluded her, that it had unlawfully denied her the right to manifest her religion and that it had unlawfully denied her access to suitable and appropriate education in breach of article 2 of the First Protocol to the Convention (Para 78).” Secondly, it is apparent that the court’s advance to an issue of proportionality under the Convention must go beyond that conventionally followed to judicial appraisal in a domestic setting. The insufficiency of that advance was uncovered in Smith and Grady v United Kingdom (1999) 29 EHRR 493, Para 138, and the new view which was required under the 1998 Act was depicted by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 25-28, in terms which have never been questioned. The power of review is larger than was formerly suitable, and larger even than the sensitive inquiry test assumed by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court is now forced to give a value judgment, an appraisal, by mention to the considerations existing at the pertinent time (Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 62-67). Again according to Gita Saghal and Nira Yuval-Davis, discussing “Fundamentalism, Multiculturalism and Women in Britain” (in Refusing Holy Orders, Women and Fundamentalism in Britain, (2000), p 14) disagree that the outcome of and on women is “. . . central to the project of fundamentalism, which attempts to impose its own unitary religious definition on the grouping and its symbolic order. The ‘proper’ behaviour of women is used to signify the difference between those who belong and those who do not; women are also seen as the ‘cultural carriers’ of the grouping, who transmit group culture to the future generation; and proper control in terms of marriage and divorce ensures that children who are born to those women are within the boundaries of the collectivity, not only biologically but also symbolically.” Conclusion One ground why this issue will persist to crop up, regardless of the House of Lords’ judgment in Denbigh, is that there are some junctures when the infliction of a responsibility to reflect on an issue in Convention rights specific terms is reasonable. In some settings it will be completely suitable to necessitate a decision-maker to focus its mind to bear honestly on rights-associated questions. For instance the deportation decisions, Ex p Razgar4 referred a confront to the Home Secretary’s pronouncement to certify as obviously baseless the appliers call that removal from the UK would be a breach of Article 8. (“Razgar argued that the psychiatric treatment and medication he was ----------------------------------------------------- 4 R v. Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27, [17]. receiving for post-traumatic stress disorder and depression would not be replicated were he to be returned to Germany under the terms of the Dublin Convention”.) The House of Lords resolved, by a mass, that the Home Secretary was not titled to confirm the case in this way. But what is important is the approach taken to the issue through the “European Convention prism”. Lord Bingham, with whom Lord Steyn and Lord Carswell were in unison said that where removal is protested in relation to Article 8 the Secretary of State must think about the same questions that an immigration judge would ask, like: “(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?” 4 ----------------------------------------------------- 4 R v. Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27, [17]. Reference 1. http://www.pfc.org.uk/node/328 2. http://journals.cambridge.org Retrieved on 17 Aug 2009 3. Byrne & McCutcheon, The Irish Legal System (4th ed., Butterworths, 2001), 4. Clayton and Tomlinson, The Law of Human Rights – and Second Annual Updating Supplement (Oxford University Press, 2003), 5. Doolan, Principles of Irish Law (5th ed., Gill & McMillan: 1999), 6. Gordon, Ward and Eicke (eds.), The Strasbourg Case Law, Leading Cases from the European Human Rights Reports (London: Sweet & Maxwell, 2001), 7. Greer, The European Convention on Human Rights. Achievements, Problems and Prospects (Cambridge University Press, 2006), 8. Harris, O’Boyle and Warwick, Law of the European Convention on Human Rights (London: Butterworths, 1995), 9. Jacobs & White: The European Convention on Human Rights (2nd ed., Oxford: Clarendon Press, 1995), 10. Janis, Kay and Bradley, European Human Rights Law: Text & Materials (2nd ed., Oxford: University Press, 2000), 11. Hogan and Whyte, JM Kelly’s The Irish Constitution (4th ed., Butterworths, 2003), 12. Kilkelly (ed.), ECHR and Irish Law (Jordan Publishing Ltd., 2004), 13. Kilkelly, The Child and the European Convention on Human Rights, (Ashgate Publishing, 1999), 14. Leach, Taking a Case to the European Court of Human Rights (London: Blackstone Press Ltd., 2001), 15. Moriarty and Mooney Cotter (eds.), Human Rights Law (Law Society of Ireland manual) (Oxford University Press, 2004), 16. Mowbray, Cases and Materials on the European Convention on Human Rights (London: Butterworths, 2001). Read More