The History of the Human Rights Law in Great Britain under the Common Law - Assignment Example

Trace the history of the Human Rights Law in Great Britain under the Common Law, the European Convention of Human Right and the impact of the Human Right Act 1998. Human rights are basically linked to Governments’ attitude towards their subjects or treatment of their subjects. Human rights expect that governments are restrained by the need to respect minimum entitlements of individuals. The history of this idea can be traced back to Roman jurist Cicero (106-43 BC) well known for his political thought. Development of this could be seen in the works of seventeenth century philosophers John Locke who wrote Second Treatise on Government in 1690. Subsequently, by the end of the eighteenth century, written constitutions of America and France included certain rights in them akin to human rights though not called as such. In Europe, the nineteenth century and early twentieth century witnessed imperial autocracy that gave way to dictatorship with the result human rights did not flourish and in fact constitutionally guaranteed rights were abrogated or ignored and the people were put to oppression. Great Britain in particular had some rights guaranteed by Magna Carta in 1215 when the King John had agreed to some restraints insisted by the feudal lords of the time. The kingship was assumed as a right derived from rule of law and hence the rule of law alone would prevail rather than the king’s will alone as had been posited by legal theorist Henry Bracton and followed by the legal scholars during mid-thirteenth century. There was no written constitution except during 1653 and 1660 and for the rest of the period common law developed with the basis of the notion that any person can do according to his free will whatever is not forbidden by law including common law. Thus, common law afforded legal force to many freedoms now known as civil rights and political rights. As Britain was not under invasion and had no dictatorship rule as a result, it had been under political oppression and class politics which resulted in application of laws in an uneven handed manner. The human rights movement in U.K. was in response to the European Convention on Human Rights which in turn was part of the international human rights movement. The latter proposed that the States as part of the international community should respect sovereignty of the other states and also each state should treat its own population with restraint. Some of the instances are international agreements known as Hague Convention 1907 and Geneva Convention 1864 which dealt with treatment of soldiers, prisoners and civilians wounded during the war time. Anti-slavery Act 1815 banning the slave trade. League of Nations started at the First World War and under its auspices, laws relating to war and slave trade were intensified and there was also an imitative to protect the rights of minorities. International Labour Organisation established in 1919 imposed obligation on the States to provide “fair and human conditions of labour” for both men and women including children. At the end of World War II, United Nations (U N) replaced the League of Nations with the chief aim of promoting peace and security throughout the world and it was felt that it could be achieved only by promoting respect for human rights and fundamental freedoms. Thus “The Universal Declaration Human Rights” was adopted by the U.N in 1948 as the basis for fundamental rights and freedoms accepted by all the States. The declaration however did not create a legally binding duty on the States. It only served as the inspiration and moral authority of human rights movement. Pursuant to the declaration, legally binding duties were created by two covenants known as International Covenant on Civil and Political Rights and International Covenant of Economic, Social and Cultural Rights. Subsequent instruments of international law are International Convention on the Elimination of All Forms of Racial Discrimination (1966), Convention on Elimination of all Forms of Discrimination Against Women (1979), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (1984) and Convention on the Rights of the Child (1989). After the formation of the European Community now known as European Union, the Council of Europe, introduced European Convention on Human Rights as required by the above said international covenants. The convention imposed obligations on the Member States to secure the rights of every one as per article 1 which lays down the basic obligation on the State. This requires the Member States to alter or amend their laws if so required to ensure carrying out the convention rights and freedoms guaranteed. Article 13 provides for remedy in the national courts for violation of the Convention Rights. If national courts cannot decide or the persons are not satisfied with the decision of the national courts, they should be allowed to approach the Court of Human Rights in Strasbourg as per Article 34 which says that States should not hinder in anyway the exercise of that right. Article 46 makes it mandatory for the signatory states to accept the judgement of the Court of human Rights. However, since the Convention is a voluntary one, states have the right not to be bound by a particular provision which is called “making a reservation” although such a move is considered undesirable. This derogatory power is conferred by the article 15.1 In Belios v Switzerland2, Belicos challenged her conviction in the national court on the grounds of right to fair trial under article 6 for which the State of Switzerland argued that it had entered a reservation in this respect. The reservation said that the right to fair trial under Article 6 was to arm the judiciary with ultimate control of the public authorities in their acts and decisions. However, court observed that the State failed furnish statement of law for the reservation and held that the reservation was not valid. Prior to the passing of the Human Rights Act 1998, the impact of European Court of Human Rights (ECHR) had been very limited on the U.K. legal order. The U.K. government’s failure to implement the legislation in time meant that ECH could not have direct role in domestic proceedings 3 It was paradoxical that the U.K had been central to the original drafting of the ECHR. The Human Rights Act 1998 of the U.K. now expressly mandates the U.K. courts to take into account the relevant ECHR jurisprudence.4 The case of The Barrett v.Enfield 5 showed how the courts were ready to facilitate the realignment during the interim period of passing of the Act and date of its coming into force. And some judgements have also seen the courts using the Act’s innovative provisions.6 As seen above the impetus to Human Rights Convention was World War II and the resultant Universal Declaration of Human Rights in 1948 which was the provocation to the outrages of war. History has been responsible for coming into force of the Convention though past horrors of war are not relevant for the current understanding of convention. The Human Rights Act 1998 of the U.K lays down standards and promotes legal accountability when it comes to violation of elementary freedom of human rights. This is the direct result of Convention that has paved way for the healthy foundation for deciding based on political orientation and constitutional requirements. The Convention and its case law enable strengthening of democracy and national security. The Human Rights Convention was brought into force in 1953 and the U.K. started accepting individual petitions from 1966 thus acknowledging compulsory jurisdiction of European Court of Human Rights based in Strasbourg. The political and civil rights guaranteed by the convention are right to life, freedom from torture and inhuman or degrading treatment, freedom from slavery or forced labour, freedom of the person, right to fair trial, prohibition of retrospective criminal legislation,. right to privacy, freedom of conscience, freedom of expression, freedom of assembly and the right marry which are to be protected regardless of sex, race, colour, gender, language, religion, political or other opinion. They should also not be associated with national minority property, birth or other status. Thus, the Convention more than protects individuals.7 The Convention gives the individual more than negative rights against the State and the citizen becomes a participative individual actively participating in the political space. The convention also makes it more difficult to restrict and interfere with the protected rights of the individuals.8 While presenting the Bill for the Human Rights Act in 1997, the then Prime Minister called it Rights Brought Home. Chapter 1 of the White Paper for the Bill makes it clear that existing arrangements for the human rights were not adequate for the present conditions and that common law is alone not sufficient to guarantee human rights. However, the record of the U.K.’s performance on human rights based on the Convention had not been satisfactory evidenced by the fact that the State lost many cases in Strasbourg. The Human Rights Act also made the position of the judges somewhat different due to constitutional changes due to consequences of the Act.9 Lord Hoffman says that while the President of America elects judges of the American Supreme Court, law lords of the House of Lords are appointed from the highest rank of judges in the U.K. While American judges are accustomed to politically oriented decisions, the U.K. law lords are not. But now due to the Human Rights Act, they are forced to assume the role as American judges do. Pinochet cases refer to Chile’s ex-general Pinochet. His case was appealed to House of Lords wherein it was decided by the Law Lords including Lord Hoffman that Pinochet could not be offered immunity. This showed that judicial independence needed further scrutiny and raised the question whether the U.K had separation of powers at all. 10 The Human Rights Act 1998 was implemented only in October 2000 heralding movement towards cultural change. The common law system of the U.K. has to get accustomed to the new position being brought about by the act. Until this Act came into effect, Britain had no strong national law on human rights although international conventions had shaped its human rights mechanisms to some extent. Roberg 11states that there are already similarities between the Convention and the Common law system. Just as case law supports understanding of the Convention, common law also is built upon case law. He points out the main disadvantages in incorporating the convention in the U.K. law. Common law already ensures individual freedoms and rights even better than what the convention has declared as the principle of human rights. Common law has the richness of case law built over hundreds of years and tradition and experience together facilitate deeper understanding than the modern principles having no secure foundations of the past. Further, incorporation of the convention is considered by some as undermining the advantages of the tradition since the Parliament with long tradition is the protector of rights and liberties. As already seen above, judges at common law are faced with politicisation of their independent institution if Parliament has no sovereignty. However, he comes to the conclusion that it is unlikely that the history and the richness of the common law system will be lost on this account since international law is a whole other legal system, which will be able to operate alongside the common law. The effect on the common law will be that of considering human rights issues whenever a judgment is delivered or whenever a statute is drafted. It is not a drag on the system, but rather it gives individuals a priority. It is true that the UK judge will have to settle some points regarding the standards and principles of the Convention, but in doing this he is not becoming a politician; he is restricted by the precedent of the Convention and ultimately controlled by the Court in Strasbourg. The opposite views in favour of incorporation of the Convention are concentrated on liberal ideas, which make individual rights the central issue. The basic intention is to protect the individual from arbitrary encroachment carried out by the state, and thereby protect and enforce the rule of law. With reference to the separation of powers, it is trusted that the executive will not inhibit the judicial power, and additionally on a ideological level it is assumed that judges are not likely, as politicians may be, to yield to popular opinions and powerful authorities.12 Impact of the Human Rights Act 1998 (HRA) Much of the rights now conferred on individuals had been denied to them during 1930s and 1940s. Though the convention is the result of British endeavours, the convention was incorporated very late in the U.K. by 2000. As such, the convention cannot be called a modern instrument. Politicians and lawyers have always advocated introduction of a Bill of Rights or at least the incorporation of the Convention and case for the latter began to gather momentum only in 1990s. Thus, it became an election promise by the Labour Party in 1997 election. Even before the adoption of the Convention, it was being referred by the courts from time to time. Thus in R.V Chief immigration Officer, Heathrow Airport ex parte Bibi (1976)13 , Lord Denning MR expressed the view that drafting of the Convention had largely differed from what he and others as judges were accustomed to in legislation. The convention contained broader statement of principle with the result it would present difficulties in application because of much uncertainty. They could not be easily digested. For example Article 8 of the convention being too wide to be capable of application. He advocated therefore to stick to the law and rules of the country and only consult the convention in case of clarification. This was called by the advocates of the HRA as “insular.”14 Judges and lawyers received the new Act with varying degrees from enthusiasm to confusion and hostility. Academics provided guidance on HRA’s likely impact which both judges and lawyers attended and it is understood that nearly £ 4 m were spent for the purpose. Prior to incorporation of the convention, a citizen could raise an issue in Strasbourg court if he thought that his human rights had been violated. But it could not be done frequently as the delay and expenses involved outweighed the resultant benefits financially. Thus Strasbourg court was being approached only in exceptional cases where one wanted to establish a significant principle.15 Liability of Public authorities It has been the subject of ever evolving opinions for the last more than fifty years. The issue is whether the pubic money should be paid for State’s compensating those affected by their acts and omissions. The law of negligence posits that public authorities should not be treated differently from private individuals as per one argument. If the defendant is a private individual, the position is less complicated. A public authority may be discharging its duty towards different people with conflicting interests. For instance, the Home Office has a duty to prisoners in custody as well to those affected by those prisoners. The law of tort has been concerned with the boundaries of liabilities to be borne by the public authorities. Judges have had to decide whether a duty of care is to be owed in spite of the putative breach of that duty in a particular case. Thus, in Hill v Chief Constable of West Yorkshire16, the House of Lords decided that no duty of care was owed to the mother of the last victim of the Yorkshire Ripper even if there was carelessness on the part of the authorities. First, the decision was based on lack of proximity between the police and the unknown victim of Ripper and second it was not fair and just to make police pay compensation if they made errors. Otherwise, it would divert the police from their duties and it would also cause of lot of expenditure in analyzing the standard of work done by the police. However, the immunity from liability for the police has been denied in various cases as the immunity remains a core principle. In Brookes v Metropolitan Police commissioner (2005)17, the House of Lords held that there was no duty care owed to the victim or witness. In Van Colle v Chief Constable of Hertfordshire Police (2006)18, HRA has changed the law on negligence. In respect of a claim made against the police for having failed to protect a witness in a criminal case from being murdered, the basis of the claim was not negligence but the HRA as otherwise it would have met with the fate of Hill and Brookes cases. Section 7 of the HRA based on Articles 2 and 8 was claimed to have been infringed. As there had been clear warnings on the murder of the witness, the judge decided that the police failed to act consistently with the victim’s right to life under Article 2 of the convention and article 8 which relates to parents’ right to respect for their private and family life. And awarded damages for breach of convention right holding that “the causation requirement which would have existed in a conventional tort case namely proof of causation on the but for test had no application where there was a breach of a Convention Right”19 This is an instance where the HRA has succeeded which otherwise would have failed as a tort claim. Similarly, there are instances in other areas where HRA has made an impact which are discussed below. . Another instance can be found in respect of Social Services Departments. In X v Bedfordshire County Council (1995)20, the House of Lords had decided in favour of the department based on policy. The same was appealed against at the Strasbourg court and it was decide that Article 3 was breached in the context of failure to prevent child abuse vide Z v United Kingdom (2002)21. Subsequent to the above decision, the Court of Appeal and the Hose of Lords gave only a qualified immunity to the local authorities though in one instance relating sexual abuse, immunity was confirmed without qualification as there was no duty owed either to the child or the parents who may themselves be the cause for the abuse.22 . However, the court appeal in D v East Berkshire (2004) 23 decided differently. It considered that if the common law does not allow the protection which the Convention gives, can the common law be developed to suit the Convention. The Court of Appeal recognized the requirement in HRA which disregarded the policy considerations discussed in X case and decided to alter the common law which in effect reversed the House of Lords. There was no appeal from this decision. The D’s case is an instance of the Convention altering the common law. Some argue that this approach strengthens the common law. The human rights declarations mirror the state of affairs at the time of their drafting. It is however peculiar that an evolved common law till this time should be thwarted by the Convention principle laid down shortly after the World War II which was meant to counter the large scale abuse of human rights.24 .Osman was a case decided at Strasbourg before the HRA. There it was decided in favour of the plaintiff for the failure of police to protect to give protection of a member of public during violence as the police ought to have known the risk. The dismissal of cases at an early stage having no chances of success also was a breach of Article 6 and the right to a fair trial as held in Strasbourg. The decision in Barrett v London Borough of Enfield 25 caused filing of number cases which otherwise would have gone without trials with the persons charged perishing in prisons. ECHR acknowledged that Osman case represented the misunderstanding the role of striking-out in civil procedure. Education Article 2 of the First protocol of the Convention which provides for right to education was not liberally interpreted in Strasbourg. Later on, two cases which went to Court of appeal in 2005 resulted in the decisions that failure to provide education was a breach of the convention right. Here one student insisted on wearing only his Muslim Dress at the school and refused to wear uniform prescribed. The court allowed a modified form of Muslim dress and in another case, a student was debarred for taking part in an arson in his class room. The House of Lords reversed the decisions in both the cases by the Court of Appeal maintaining that right to education just meant access to country’s education system and not to one particular school .and therefore held that the student could not refuse to wear uniform prescribed the school. This is another impact of the convention which gave rise to uncertainty resulting in the Court of Appeal taking one stand and the Higher court another. Anufrijeva 26 , involved several claims under the HRA before the Court of Appeal. It brought into focus Article 8 that is claimed to be infringed by the local authority in respect of Asylum seekers. The Court decided that if there was maladministration, awards could be made for the infringement of Article 8. Lord Woolf observed “There are no doubt other ways in which the proportionate resolution of this type of claim for damages can be achieved. We encourage their use and do not pretend to be prescriptive. What we want to avoid is any repetition of what has happened in the court below in relation to each of these appeals and before us, when we were deluged with extensive written and oral arguments and citation from numerous lever arch files crammed to overflowing with authorities”27. Uncertainty in the Convention has been of concern which has been negatively impacting on the implementation of HRA Detention of suspects Article 5 is a highly potent one prompting a government to enhance it power to detain a person without trial. It became true in A & Ors.v Secretary of State for the Home Department28. After the incident of 9/11, the Government invoked Article 15 of the Convention relating to a threat to the life a nation when HRA derogation can be resorted to by suspending personal liberty under article 5(1) in respect detaining non-nationals considered as threat to national security. The House of Lords felt that the courts could not disregard the conclusion that there was a threat to nation’s life within the meaning of Article 15. But in view of the Strasbourg jurisprudence, it was concluded that the detention of non-national suspects was contrary to Human Rights Treaty obligations as it displayed discrimination on the ground of nationality or immigration status. Hence, the detention order was quashed by the House of Lords. This is another case of HRA‘s impact which would not have been possible before the incorporation. Conclusion The impact of the Convention and the HRA outlined above is not exhaustive but only indicative and there are some more areas such as criminal trials, privacy and defamation, inquests where cases of impact are found. The impact of HRA has brought in new hope for the citizens and sense of security in them though the judiciary has to exercise a balancing act due to some uncertainties in the Convention which is the basis of the HRA. The several decades old convention needs to be revisited in order to be consistent with the evolved common law overtime which always remains updated. . . References Books Anthony Gordon 2002 UK Public Law and European Law, Hart Publishing Davis Howard 2007 Human Rights Law Directions, Oxford University Press Human Rights Act 1998: Lester and Pannick (Butterworths) Cases A & Ors.v Secretary of State for the Home Dep Alconbury v. Secretary of State the Environment, Transport and the Regions (2001) JPEL 291 Anufrijeva v Southwark Borough Council [2004] QB 1124 Belios v Switzerland (1988) 10 EHRR 466 Brookes v Metropolitan Police Commissioner (2005) 2 All ER 489. D v East Berkshire (2004) QB 558 Hill v Chief Constable of West Yorkshire [1989] AC 53 R.V Chief immigration Officer, Heathrow Airport ex parte Bibi (1976) 1 WLR 979 at 985 B R v Secretary of State for Home Affairs, ex p Bhajan Singh [1976] QB 198 The Barrett v.Enfield (1999) 3 All ER 193 Van Colle v Chief Constable of Hertfordshire Police (2006) 3 All ER 963 X v Bedfordshire County Council (1995) 2 AC 633 Z v United Kingdom (2002) 34 EHRR 3. Others Roberg Af Kristine, 2003, Common Law & The Human Rights Act 1998, available at accessed 19 May 2010 Warnock Andrew and Edward Faulks QC, Impact of HRA in the Court. Available at accessed 19 May 2010 Read More