Extent of Implementation of the ECHR by the Human Rights Act 1998 - Essay Example

Extent of Implementation of the ECHR by the Human Rights Act 1998 The Human Rights Act 1998 was enacted by the UK, in order to give further effect to the rights and freedoms provided by the ECHR, which had been adopted in the year 1950.1 The Human Rights Act 1998 provides instructions to the national courts of the UK. These instructions relate to the interpretation of domestic legislation, so that these conform to the provisions of the ECHR.2 With regard to the ECHR, any higher court in the UK that detects incompatibility with UK law and the Convention has to provide a declaration of incompatibility, with regard to that piece of legislation. Such instances necessitate the enactment of an amendment, in an expeditious manner. A ministerial order has to be procured for taking such speedy action, and this is not to be achieved by an act of parliament.3 The provisions of Article 3 of the ECHR apply to situations, wherein a contracting state exposes an individual to risks that have been provided under these provisions, in places that are not within the jurisdiction of that contracting state. Moreover, the Convention Against Torture prohibits the deportation of an individual, by a contracting state, to a nation where that person runs the risk of being subjected to torture.4 The prohibition under Article 3 of the ECHR is deemed incapable of being balanced against any interests, such as national security.5 Thus, an alien who poses a terrorist threat to a state party of the ECHR cannot be deported, if such action would expose that alien to a real risk of being tortured or subjected to degrading or inhuman treatment at the country of destination.6 Moreover, Article 3 provisions are absolute and this contrasts with the majority of the other provisions. For instance, Article 8 enjoins respect for family life, which is not absolute, as the very same Article permits exceptions to this right, on grounds of public order and national security.7 This makes it possible to deport foreigners who have committed serious offences, even if this results in estrangement from the spouse and children. This depicts a balancing of the right to respect for family life with other considerations.8 In the St. Kitts case, the ECtHR held that expulsion would be tantamount to inhuman treatment and infringement of Article 3 of the ECHR. In this case, the applicant has to be deported to a country that could not provide adequate medical facilities for his fatal illness.9 As such, the provisions of the ECHR have been consistently violated by the UK. Such infringements had commenced, much before the threat posed to national security by Al Qaeda and other Islamic terrorist groups. For instance, in Chahal v United Kingdom, the Indian government had sought the extradition of a member of the Sikh community, from the UK government. 10 This person had been active in the separatist movement in India, which was aimed at establishing an independent nation for the Sikhs. The UK government acceded to the request of the Indian government, detained this person and arranged for his deportation to India.11 The European Court of Human Rights (ECtHR) ruled that the UK was prohibited by Article 3 of the ECHR from acceding to the Indian government’s request and deporting Chahal to India. This was because there was every possibility of Chahal being tortured by the Indian authorities. In addition, the ECtHR held that Article 5 (4) of the Convention had been breached by the UK government, which entitled a judicial review regarding the lawfulness of the detention.12 This decision of the ECtHR made it very clear that the UK government could not cite national security as a reason for avoiding the extraterritorial effect of the provisions of the ECHR. As a result, derogation from the provisions of Article 3 of the ECHR was deemed invalid, even if there was a possible risk to national security. As such, there have been several cases, in which the legality of the Human Rights Act 1998 and its compliance with the ECHR have been challenged. Some of the more important of these cases are Malone v Metropolitan Police Commissioner13 and R v Secretary of State for the Home Department, ex parte Brind.14 In all these instances, the courts declined to declare the Crown in breach of the provisions of the ECHR. Thus, these decisions demonstrate the absence of protection of rights provided by the ECHR, under the Human Rights Act 1998. Another important feature of these decisions is that there are no judicial remedies in such instances. Moreover, it was clearly established that the national courts were devoid of the power to declare an Act of Parliament to be unconstitutional. 15 Thus, the domestic courts did not find any violation of fundamental rights by the Crown. In Brind, there had been a request to declare that the Crown had infringed the fundamental rights of an individual. This request had been made based on the Convention. As such, this case entailed the rights declared under the ECHR and not under the constitution.16 The Home Secretary of the UK had been provided with the authority to direct the BBC and Independent Broadcasting Authority to abstain from individuals holding allegiance to banned terrorist organisations. It was contended by the claimants that these prohibitory orders of the Home Secretary were ultra vires. It was also claimed that the Home Secretary was required to comply with the provisions of Article 10 of the ECHR. 17 The ECtHR has applied Article 8 of the ECHR to the use or disclosure of information that pertains to private life, under different situations. 18 Some of these are disclosure to the media of recordings obtained from closed circuit television, publication of an individual’s photograph that had been taken during the course of the daily life of that individual, revealing the medical information of an application to a court and a public authority dealing with compensation claims, and utilising information in a clandestine police register.19 Recently, while Prince William and his wife Kate were visiting Malaysia, photographs of Kate were published in some periodicals. These photographs were of a semi – nude Kate. These photographs had been taken at the Provençal retreat of the Viscount Linley. 20 After a sustained effort by the lawyers of this, royal couple and the courts ordered these photographs to be withdrawn from circulation. However, several publications in Ireland and Italy contrived to reprint this salacious material, prior to the imposition of the court ordered prohibition. 21 Moreover, in YL v Birmingham the issue to be addressed was whether the rights provided by the ECHR could be invoked. This was with regard to public services made available by a public authority that had entered into a contract with a private service provider for the provision of these services. The House of Lords held that the nursing home was not carrying out functions of a public nature.22 Consequently, the ECHR provisions were not pertinent. Their Lordships held that the provision of publicly funded residential care by a private entity could not be understood as the discharging of the functions of a public body.23 In accordance with the above discussion, it can be surmised that the provisions of the ECHR have been frequently violated by the UK courts. As such, there have been many cases, in which the legality of the Human Rights Act and its compliance with the ECHR has been challenged. References Batjes, H, ‘Source In Search of a Fair Balance: The Absolute Character of the Prohibition of Refoulement under Article 3 ECHR Reassessed’, Leiden Journal of International Law, vol, 22, no. 3, 2009, pp. 583 – 621. Chahal v The UK [1996] (22414/93) ECtHR 54. Derckx, V, ‘Expulsion of Illegal Residents (aliens) with Medical Problems and Article 3 of the European Convention on Human Rights’, European Journal of Health Law, vol. 13, no. 4, 2006, pp. 313 – 319. Dickinson, R, E Katselli, C Murray & OW Pedersen, Examining Critical Perspectives on Human Rights, Cambridge University Press, 2012. Dutertre, G, Key Case – Law Extracts: European Court of Human Rights, Council of Europe, 2003. Ehlers, D, Europe Fundamental Rights and Freedoms, Walter de Gruyter, 2007. European Convention on Human Rights 1950. ‘European Court of Human Rights Chahal v The United Kingdom’, International Journal of Refugee Law, vol. 9, 1997, p. 86. Human Rights Act 1998. Jenkins, D, ‘Common law declarations of unconstitutionality’, International Journal of Constitutional Law, vol. 7, no. 2, 2009, p. 210. MacQueen, K, A Wherry & P Treble, ‘Keep calm and carry on’, Maclean’s, vol, 125, no. 38, 2012, p. 10. McDonagh, M, ‘Balancing Disclosure of Information and the Right to Respect for Private Life in Europe’, Journal of Internet Law, vol. 16, no. 3, 2012, pp. 3 – 17. McHale, J, A Gallagher & I Mason, ‘The UK Human Rights Act 1998: implications for nurses’, Nursing Ethics, vol. 8, no. 3, 2001, pp. 223 – 233. Parliament UK, Judgments - YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents), retrieved 28 October 2012, . R v Secretary of State for Home Department ex parte Brind (1991) 1 AC 696. YL v Birmingham City Council & Ors [2007] UKHL 27. Read More