The Impact of the Human Rights Act 1998 on UK Judicial Review - Essay Example

The Impact of the Human Rights Act 1998 on UK Judicial Review: Re Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 Introduction The Human Rights Act of 1998 (HRA, hereafter), which took effect in the United Kingdom on October 2, 2000, is a domestic legislation which incorporated the rights laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECPHR hereafter) in 1950. The significance of the Act is that it makes accessible to the British remedies which previously they had to travel to the Strasbourg, France for. The legislation has been referred to as “an unprecedented transfer of political power from the executive and legislature to the judiciary, and a fundamental restructuring” of the British political constitution. However, the so called judicial power in re the HRA is not as ideal as it would seem with respect to existing primary legislations because even if the courts can declare it as incompatible with convention rights, it is at the pleasure of the Parliament to revoke, modify or alter that legislation. The judicial power to declare incompatibility with convention rights therefore does not subsume the power to strike down primary legislation (Wright 2001 p 15). The HRA, in effect, pits entities called public authorities vis-à-vis convention rights, and determines if the former have committed acts that violate the convention rights of the latter. The impact of the HRA is that it compels local courts to take into consideration the decisions of the European Court of Human Rights in Strasbourg concerning cases involving the HRA rather than the usual reliance on their own precedents. Previously, the courts were under no compulsion to religiously follow the ECPHR provisions. This is because the act of the state in entering into an international treaty cannot and does not affect a state’s domestic law. In fact the ECHR played only a secondary role in court decisions prior to the HRA. This court perspective was illustrated by Lord Denning when he remarked: “The Convention is drafted in a style very different from the way in which we are used to in legislation. It contains wide general statements of principle. They are apt to lead much difficulty in application because they give rise to much uncertainty. […] So it is much better for us to stick to our statutes and principles, and only look to the Convention for guidance in case of doubt” (Faulks & Warnock 2008). The English courts however, did not totally discount the ECHR provisions prior to its incorporation into domestic law. In one of the cases, Lord Bridge remarked that “it is well settled that that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that parliament intended to legislate in conformity with the Convention, not in conflict with it” (Turpin & Tomkins 2007 p 273). In the 1991 case however of R v Secretary of State for Home Department ex p Brind [1991] 1 AC 696, the House of Lords audaciously declared that the mere breach of the ECHR did not constitute a ground for judicial review. Thus, public authorities can only be made subject to a judicial review if there was clear illegal, irrational, or procedurally unfair action on their part. The advent of the HRA however has changed all this confusion and debate about the application of the Convention rights which are now mandatory upon the courts to consider (Turpin & Tomkins 2007 p 273). Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 Article 5 of the ECHR is a long provision that guarantees the enjoyment of the freedom of expression which subsumed certain other freedoms like the freedom to hold an opinion. As a convention right, the freedoms enshrined under this article are likewise subsumed and incorporated in the HRA 1998 and public authorities are prohibited from violating it. This paper will discuss the history of the British judicial review, post-HRA, in connection with the application of this particular provision and how the courts applied the same to domestic cases after the incorporation of the convention rights into domestic law through the HRA of 1998 with a particular view on whether the HRA has changed the courts’ application of the same in cases subsequent to October 2, 1998. Article 5 of the Convention: The UK Courts and HRA 1998 After the enforcement of the Human Rights Act of 1998, on October 2, 2000, several decisions were rendered by the courts which called for the application of the provisions of the HRA. Among the provisions of the Convention which have become the center of disputes in these cases is Article 5. There are three cases being presented by this paper all of which concern the application of Article 5. The cases are: MH v Secretary of State for the Department of Health [2005] UKHL 60; R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12, and; the most important case of the lot is A v Secretary of State for the Home Department [2004] UKHL 56. The case of MH is about a young woman afflicted with the Down syndrome and the case called for a review of the Mental Health Act of 1988 to determine if it is compatible with convention rights particularly Article 5 (4) or the right to granted to applicants being detained to seek recourse to judicial authority. In the second case of Gillan, the Appellants sought the review of another legislation i.e. The Terrorism Act of 2000, which authorised police authorities to stop any person and conduct searches whether or not that person is suspected of undertaking terrorist activities. In the third case of A v Secretary of State, the appellants were all foreign nationals detained without having been charged of any criminal wrongdoing. The justifying legislation is the Anti-Terrorism, Crime and Security Act of 2001 with an accompanying certification by the Secretary of State for the Home Department. A. MH v Secretary of State for the Department of Health [2005] UKHL 60 This case is concerned with the application of the Mental Health Act of 1983 vis-à-vis the right to liberty of an individual under the ECHR particularly subsection 4 of the Mental Health Act which states that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” The case involves a young woman who had Down syndrome. Her mother kept her from health and social services and in effect denied her of therapy and social contact to help her develop and cope with her illness. When the mother got sick however, MH, the young woman exhibited disturbing behavior. The health services obtained a warrant to enter the home and brought MH to the hospital for assessment. Thereafter, MH’s mother attempted to discharge her from the hospital but her efforts were blocked by the attending psychiatrist and the hospital managers. The plan was to petition her for guardianship under the Act and find her a suitable living condition. Since the mother, her nearest relative, was anticipated to object to such action, the authorities applied for the appointment of an “acting nearest kin” with the court. An interim court order was issued in August 2003 and immediately thereafter an application for guardianship was applied for. This application was made before the expiration of the 28-day assessment which had the effect of extending the assessment period while the case is pending before the court. The effect on the mother was that she cannot find relief in court because her daughter was not officially detained but only kept for assessment. The only other recourse for the mother in this case, which she took, was to apply for a referral by the Secretary of State. The issue in this case was whether or not the Mental Health Act of 1983 particularly Section 2 and Section 29(4) is compatible with the convention rights of MH under Article 5 subsection 4. Section of the said Act in regards to the patient’s admission which states that: “ (a) […] is suffering from mental disorder of a nature of degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and (b) he ought to be so detained in the interests of his own health or safety with a view to the protection of other persons.” The Court decision held that there was no incompatibility at all with any of the provisions cited with convention rights on the ground that there were adequate opportunities for the applicants to seek recourse to the court to question the detention of the patient if the patient herself cannot bring an action, citing in particular the mother’s successful resort to the Secretary of State. B. R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12 The Gillan case involved the Terrorism Act of 2000, specifically sections 44-47 thereof which provide police authorities the discretionary power to stop and search any individuals even if there was no reasonable suspicion to believe that they are terrorists. There are two appellants in this case: Mr. Gillan, a PhD student from Sheffield and Ms. Quinton, an accredited freelance journalist. On September 9, 2003 both appellants were separately in the vicinity of the ExCel Centre, Docklands in East London: Mr. Gillan to join in a peaceful protest against an arms’ fair held in that area, and; Ms Quinton to film the ongoing protest against the arms’ fair. Mr. Gillan was stopped by the police while he was riding his bicycle near the Centre and interrogated and searched for about twenty minutes. Ms. Quinton was likewise stopped and was questioned by a female police officer for about thirty minutes according to the appellant and five minutes according to the police officer. When the police officers found nothing incriminating on both, they were released and were given Form 5090. The “stop and search” procedure was conducted by the Metropolitan Commissioner under the Terrorism Act of 2000 specifically sections 44 to 47. The procedure under the said provisions came under a three-step process. The first stage allows a constable to stop any vehicle or individual in an area specified in the authorisation and conduct a search. The second stage required that the authorisation must be confirmed by the Secretary of State within 48 hours from the application. The third is the actual exercise of the “stop and search” procedure which will be made purportedly for the purpose of seizing articles which may be used in connection with any potential act of terrorism. This procedure can be exercised without any reasonable ground to suspect a person. The Appellants objected relying on, inter alia, purported violation of convention rights under Articles 5, 8, 10 and 11. The House of Lords contended that the “stop and search” procedure allowed under Sections 44 to 47 of the Terrorism Act 2000 did not infringe upon the convention rights of the individual. Anent Article 5 or the right to liberty, there was no violation of this particular right because there was no arrest, no confinement and the subjects were not taken to another place other than where they were stopped. Besides, according to the House of Lords, the public are “subject to a clear obligation not to obstruct a constable exercising a lawful power to stop and search for articles which could be used for terrorism and any detention is in order to secure effective fulfillment of that obligation.” As to violation of Article 8 or the right to privacy of the Convention, the same court held that the “stop and search” procedure cannot be said to violate this right since a cursory search of articles in the possession of the individual being searched can hardly be said to reach the level of severity contemplated by the article. Anent Article 10 (and 11) of the Convention, there is no reason, the Court opined, why the “stop and search” procedure would infringe upon it if the power is used correctly and properly. The only potential objection against the procedure is when the restrictions and conditions which limit these freedoms do not comply with the acts. But the procedure, according to the Court, precisely met the test of legality because the law is “clear and accessible” and gives no room for a construction on the basis of “whim, caprice, malice, predilections or purpose other than that for which the power is conferred.” C. A v Secretary of State for the Home Department [2004] UKHL 56 This case involved the implementation of the Anti-Terrorism, Crime and Security Act of 2001. Part 4 of the same was enacted immediately after the September 11, 2001 attack by the Al-Qaeda Group against the United States. Closely linked to this legislation is the Derogation Order which was an application for derogation from Article 5 of the ECHR under Article 15 of the said treaty. The purpose of the Derogation Order was to justify the detention of suspected terrorists under the assailed law without bringing charges and with no pending deportation proceedings. In this case, nine individuals none of whom were UK nationals were detained on the ground that they were suspected terrorists. Their detention was made on the basis of the Anti-Terrorism, Crime and Security Act 2001 as certified by the Home Secretary. Two of the detainees were subsequently allowed to leave for their homeland, one was committed to a mental hospital and another was released. There were no charges brought in court. The Appellants challenged the legality of their detention as well as the legality of the law specifically Section 23 of Part 4. They contended that the UK, being a signatory to the Convention was obliged to abide by its provisions as well as the HRA and the act of detaining them and the law which allowed their detention was a derogation of the provisions of the Convention. The assailed provision, i.e. Section 23 of Part 4, Anti-Terrorism Act, states in subsection 1 thereof: “A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by – (a) a point of law which wholly or partly relates to an international agreement, or (b) a practical consideration.” Some of the arguments of the appellants to support their case are: the threat to the security of the UK did not come only from foreign nationals; the provisions of the Anti-Terrorism, Crime and Security Act specifically Sections 21 and 23 failed to solve the Al-Qaeda threat to the British because it allowed the UK nationals suspected terrorists to go scot-free, it allowed suspected foreign nationals to be deported to their home country and to any country willing to take them, and; if suspect UK nationals did not have to be detained there is no reason why foreign nationals suspected of being terrorists have to be detained. In the end, the Court held that there was incompatibility with convention rights under Articles 5 and 14, and that Derogation Order should be quashed. The Court explained that an order derogating from a convention right can be made only upon a showing that there is an actual or imminent emergency. The reasons that were advanced for its derogation were inadequate and did not justify why it is applicable only to foreign nationals and why a terrorist stops being a threat if deported abroad when it is possible for him to attack even British interests overseas. There was therefore a discrimination which is explicitly prohibited under Article 14 of the Convention which UK did not apply for derogation. Moreover, the fact that the appellants were foreign nationals did not mean that they are exempted from enjoying convention rights under the HRA because these rights must apply to all who are within the jurisdiction of the UK. The assailed provisions therefore are discriminatory. Conclusion The adoption of the Human Rights Act of 1998 which was made effective on October 2, 2000 failed to make a really big impact on judicial reviews in general. The three cases above discussed, except perhaps the case of A v Secretary of State for the Home Department [2004] UKHL 56, could not be said to have been revolutionised by the HRA. All of these cases were decided by the House of Lords after October 2000. A perusal of these cases especially the first two decisions just recently decided in 2005 and 2006, respectively, will reveal that the Courts barely went out of the usual to resolve the questions in these cases. The third case however did provide a glimmer of hope in the judicial horizon when the court stepped out of their usual manner of deciding cases. The courts are said to be customarily tame where the government invokes the “national threat” line. In the case, for example, of MH v Secretary of State for the Department of Health which was decided in 2005, the Court upheld the questioned provisions assailed for their inadequate mechanism in seeking judicial review despite the fact that the mother of the patient with the Down syndrome had to request the Secretary of State to exercise his reference power. A party whose only legal recourse to question the detention of her daughter by the medical authorities is to seek the Secretary’s help cannot be said to have an adequate legal remedy. It certainly cannot be classified as adequate and speedy remedy when one is at the mercy of the Secretary of State who is not obliged to automatically exercise his reference power but may grant it discretionarily only. If the Secretary of State, for example, did not wish to grant that option to the mother, the latter would have no recourse under the circumstances because her daughter was not officially detained but only being subjected to assessment. The medieval decision of the court in this case was simply not what was expected of them after the advent of the Human Rights Act. Neither is the case of R (Gillan) v Metropolitan Police Commissioner [2006] UKHL 12 illustrative of the grand judicial power that was supposed to have descended on the judiciary by reason of the adoption of the Human Rights Act. This case, which was decided just very recently, failed to justify in one’s mind the failure of the court to see the procedure of “stop and search” as a possible tool for arbitrariness and abuse on the part of the police authorities. In the first place there are no clear and definite criteria set as to why a certain individual is being stopped and searched and why the others are not. The fact that one need not be a suspect of any terrorist activities or of any kind of wrongdoing and be chosen is enough reason to call such procedure arbitrary. If there is no yardstick for selecting its subject then there is no discernible purpose for its implementation but it is just a mere fishing expedition. To say that there is no deprivation of liberty because the subjects are not taken to another place to be confined and the procedure is relatively short is fallacious. The place and the duration are not what matters but the free exercise of the freedom or the lack thereof is. According to some authors, however, there is reason to be positive with the adoption of the HRA because of the decision of the court in the case of A v Secretary of State for the Home Department [2004] UKHL 56. Unlike the first two cases, the Court this time faced the Government squarely and declared its actions incompatible with convention rights. It bravely declared the government’s Anti-Terrorism Act, particularly Section 23 thereof and the accompanying Derogation Order, as incompatible with Article 5 of the Convention. Whether it was out of courage or the Court was merely insulted by the Attorney General’s argument which in effect told the Court to mind its own business and leave the government alone, does not matter anymore. What matters is that the Court has finally allowed itself to contradict the government for once in a “national interest” case after a long time. The A v Secretary case illustrated the general forecast that if there is any area in which the Human Rights Act of 1998 can be especially and potentially potent, it would be in respect to the right to liberty under Article 5 of the Convention when the government would seek to detain or deprive an individual of his liberty without bringing criminal charges against such individual. The case of A v. Secretary of State justified this outlook (Faulks and Warnock 2008). The reason why some sectors hailed this case as one of the most important cases since the advent of the Human Rights Act 1998 is traceable to the history of the UK case law. The decision in the case goes “against a long line of case law dating back to the First World War in which the courts have declined to overturn government decisions made on the basis of perceived threats to national security” At last, the HRA, through this case, is perceived as a powerful force that can effectively promote the right to liberty of individuals under Article 5 of the Convention (Turpin and Tomkins 2007). References A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, [2005] 2 WLR 87. BAILII viewed 3 April 2008 Faulks, Edward, QC & Warnock, Andrew 2008, The Impact of the Human Rights Act in the Courts. Viewed 3 April 2008 HRI 1995, The European Convention on Human Rights. HR-Net. Viewed 1April 2008 MH v Secretary of State for the Department of Health [2005] UKHL 60. BAILII. Viewed 1 April 2008 R (Gillan) v Metropolitan Police Commissioner [2006] Crim LR 752, [2006] HRLR 18, [2006] UKHL 12, [2006] 2 AC 307, [2006] UKHRR 740, [2006] 2 WLR 537, 21 BHRC 202, [2006] Po LR 26, [2006] 4 All ER 1041, [2006] 2 Cr App R 36. BAILII. Viewed 2 April 2008 Turpin, Colin & Tomkins, Adam 2007, British Government and the Constitution: Text and Materials. Cambridge University Press, p 273 Wright, Jane 2001. Tort Law and Human Rights. Hart Publishing, p 15 Read More