Section 3 of Rights Act 1998 - Essay Example

Human Rights It is clear from Section 3 of Rights Act 1998, that the European Convention on Human Rights (ECHR) has, in one sense, a lower status than ordinary statutes in that it cannot automatically override pre-existing laws. Introduction: Under Section 3, sub-section 1 of the Human Rights Act 1998, it is enunciated that “primary legislation and subordinate” 1 legislation need to be learned, understood and contextualised in accordance with the European Convention laws. Primary legislation is laws derived from the Crown, or royal proclamations, while subordinate legislation is those enacted, not through proclamation. Further, Section 3, sub section 2, delineated that the validity of this provision of legislation applies to such kind of primary legislation, which could be state courts of member countries, but in no way, could impinges upon enforcement and operation ability of existing laws, that are not in consistency with laws of the ECHR, or in the enforcement of inconsistent lower legislation, should the primary legislation not be competent enough, to take cognisance of such secondary legislation enforcement. Thus effectively, it is seen that apropos HRA 1998, British Courts are themselves required to act compatibly with the Convention, thus putting broader responsibility on them to incorporate and apply the Convention and its elucidation by the European Court of Human Rights. UK courts are also privileged to amend specific provisions of UK laws to make them in line with European Convention, provided it does not disagree with the express intentions of UK Parliament. 2 The main idea behind this however, is that that secondary laws in countries could still co-exist, independent of the fact that ECHR laws are inconsistent with them, or cannot be enforced in certain contexts. 3 Conventions cannot replace state laws or render them superfluous: Normally it is seen that in case of European Convention laws clashing with State or domestic laws, it is necessary for local laws to be amended in order to provide for implementation of EC laws and conventions. But perhaps this is not applicable in the case of ECHR laws which deal with Human rights. In other words, it may not be wrong to interpret that member State laws, even in the face of inconsistencies with ECHR laws, could still be predominant. But in the cases of ECHR, it is believed that the verdicts of national courts determine internal laws, and it is to these decisions that law of precedents need to be applied. Therefore, the application of European laws needs to respect the framework of domestic and local laws in its installation and enforcement of diktats. 4 The ECHR broadly lays down the various articles that underpin the enforcement of various human right laws in the United Kingdoms and elsewhere where it could be invoked. It is divided into three categories. In the first place, Articles 1-18 are enunciated, in the second, Articles 19-51 are laid out and finally, concluding provisions delineated. The basic rubric of ECHR has been to safeguard fundamental rights of citizens and ensure that their rights are well implemented, especially in the context where these rights may be subjugated, or undermined. However, the question that now arises is if Section 3 of Human Rights Act 1998 is invoked, it does not empower Courts to amend legislation, but new rules and regulations become applicable, when this Section is enforced. 5 Therefore, considering the fact that local courts may, or may not have authority to change local laws that would conflict with European laws. It is seen that parts of the ECHR have been incorporated into the Human Rights Act. Thus it is seen that if the legal process cannot be made in conformity with reigning local law, there would inconsistencies that need to come under purview of Section 4 of the HRA. Thus, under such circumstances, it would be necessary to seek Court modifications under Section 10, and thus it would not be wrong to discern that protection for human rights is very much within the discretion of the judicial interpretation and reasoning of current statutes by the competence of Courts. Thus, it would be possible for Courts to achieve, through modifications and amendments, conformity with the requirements of ECHR, even though areas of uncertainty and lack of clarity in the existing laws may be evident. The wordings of Section 3 also speaks of not total congruence, but as far as possible, in which case, the aspect of the need to maintain democratic norms also come into play. This it could be reasonable seen that a lot would depend on jurisprudential interpretation and the stands taken by the courts and its executive functionaries. Aspects of law of construction: Clayton and Tomlinson suggest that the local courts could take help in dealing with new law for construction by dealing with the following aspects: Rule of construction cases Rules to construe laws with relation with European conventions Doctrine of reading in and out. 6 Pick stone v. Freeman (1988) 3 WLR 265: It is seen that in the case of Pick stone v. Freeman (1988) 3 WLR 265, a conflict arouse between the local laws and the Treaty of Rome regarding equal pay status for men and women doing the same kind of work. The Courts held that “The judgments of the European Court, to which Purchas and Nicholls L.JJ. have referred, point clearly enough to the conclusion that the equal pay rights established by article 119 as explained in the directive are directly enforceable in a national court in a case where the national legislation is such as to restrict the rights conferred on employees by article 119. 7 Lister v. Forth daydock Engg. (1989) 1 All ER 1194: Again, in the case of, it is seen that a similar kind of decision has been enforced. But when the decision in the case of R.v. A. (2001) 2 WLR 1546 is considered, it is seen that the incompatibility between the ECHR and local laws is palpable. This case relates to a woman who sought action against rape committed on her by another person, A. The defendant claimed that he had sexual experiences with the applicant several times in the past, so the case of rape is unfounded. The Court found favour with his argument. “A law that bans juries in rape trials from hearing evidence that the accused had a previous sexual relationship with his accuser breaches his right to a fair trial, five law lords ruled yesterday in a landmark judgment.” 8 This is notwithstanding the ECHR and concomitant laws on human rights of the victim, and the jury found it necessary to strike down the aspect of incompatibility and ruled that the laws need to be in line with ECHR provisions. Another factor that comes into play is the years in which these laws were implemented. The UK Human rights Act came into force in 1998, while the ECHR in 2004 and since then a steady number of cases have trickled in. A matter of significance is that ECHR 2004 is not retrospective in nature and could enforce current or future laws. 9 It is now necessary to consider aspects of ECHR laws. Under Section 2, it is necessary for state machinery to perform their task in compliance with convention directives, and, as the occasion demands, necessary damages may be instituted for violations of these norms. Donoghue v. Poplar Housing & Regeneration Comm Association Ltd: In the case of Donoghue v. Poplar Housing & Regeneration Comm Association Ltd and the Secretary of State for the Environment, the learned judge, Lord Woolf delineated the role of the courts in that it could not make laws, but it could only interpret them. 10 According to learned judge, the main aspects would be in terms of courts having to draw the line, and differentiate between making laws and interpreting them. Again, if one were to consider the aspects of system of appeal for detainees on mental health grounds, viz. R (H) v. Mental health Tribunal North & East London region and Another, (2001) the apparent conflict between Section 73 of Mental Health Act and Article 5 of ECHR was seen. Under Section 73, the health care unit had to discharge its patients if the criteria were not met. Therefore, the main issue for discharge was non – meeting of criteria. However it was seen in contrast with ECHR laws and later amended. 11 Wilson v. The First County Trust Ltd., 2003: Again the incompatibility between local commercial laws, specifically Consumer Credit Act 1974 and the ECHR laws is seen in the case of Wilson v. The First County Trust Ltd., 2003, in which the applicant mortgaged her car for a loan of £5,000, along with a processing charge of £ 250. Later she claimed that the loan interest was exorbitant and filed appeal. The judge felt that the loan transaction did not come within the purview of CCA 1974. However, the loaner claimed that the courts had infringed Human Rights Act 1998. 12 The higher courts in this case, cancelled the lower court decision on the grounds that: The transaction came before the passing of HRA 1996, and there are no provisions in HRA for dealing with cases with retrospective effect. In this case, legislation claims precedence over HRA 1996. “UK legislation cannot be overridden by the Human Rights Act even if it is incompatible with the Convention.” 13 Strasbourg Court: The European Courts of Human Rights 1949, or Strasbourg Court, addresses issues of legal interests affecting human rights. Over its eventful history it has addressed major cases of far-reaching legal implications and ramifications. In a domestic human right violation case in Turkey, the ECHR ruled, during 2008, that Turkey pay up damages for failure on the part of the Turkish government to sufficiently punish a person who subjected his wife to harassment and ultimately killed his mother-in-law during 2002. This is the first time that European Courts of Human Rights or Strasbourg Court has upheld such convictions in other countries. In the case of Aston. Cantlow Parochial Church Council v. Wallback (2004) 1 AC 546 553 H – 554A, the Court held that in case where the local courts need to adhere to ECHR, it is necessary that conformance with Convention be observed. Where perceived breach is feared, the courts of respective countries need to settle it and the services of ECHR need not been requisitioned. 14 Again, it is seen that there are essential differences between the judgments of Strasbourg Courts and courts in the UK. It is seen that, unlike UK legislation, Strasbourg does not award punitive punishment. Again, in some cases, Strasbourg courts have awarded fines and damages for non- fiscal or intangible losses, which are not followed by UK laws. 15 Role and responsibilities of Strasbourg Court: The role of Strasbourg Courts in the pursuance of enforcement of European Convention laws, dealing with its non-enforcement, or partial enforcement and also national indifference, in seeking to inculcate broader aspects of human rights, rights to privacy and family life, freedom of thought, expression and association and other aspects of rights that imbue modern community living and how State, or nationals who do not concur with EC conventions need to be dealt with, shall form the major role and responsibility of Strasbourg Courts.” Such case law has primarily grown out of specific categories of cases brought to the European Court of Human Rights.” 16 In as far as the application of laws are concerned, it is not always the precedent that States need to bear absolute responsibility. In the case of Osman v. United Kingdoms (2000), the complaints lodge a complaint that the police did not take necessary steps or precautions, despite being fully aware of the facts and circumstances of the case. It was seen that in this case what transpired was that the police were inactive and spectators to shootings, which resulted in several deaths. The role of police was criticized in that, despite being aware of the risks and challenges, they choose not to act to save the lives of people. 17 According to the interpretation of Section 2 of the HRA, Courts may need to take cognisance of Strasbourg case, but is not needed to be bound by it. Thus, in the event Strasbourg does not categorically address to specific issues, departures from Strasbourg could be affected. Another interesting aspect regarding Strasbourg ruling is that the doctrine of precedents is not available, in that Courts could not base their interpretations and verdict on previously decided cases of similar nature. 18 The various other aspects of Strasburg are found under Section 34 of Act. It is law that only victims and not respondents may seek claim under cases filed in International Court of Human Rights (Strasburg). This may be done after all domestic avenues are exhausted. The rulings of the ICHR are binding upon the parties and need to be enforced. 19 Further, leading cases that are to be reviewed in the context of Strasburg are: R v. IRC ex parte National Federation of self-employed 1. Sec. of State for Foreign and Commonwealth Affairs ex parte world development movement Ltd. 20 ; 21 In the first case, that of R. v. IRC National Fed, it is seen that leave to challenge a grant of conditional planning permission made by Somerset County Council (the intended first respondent) on July 5, 1996 to ARC Southern Limited (the intended second respondent).” The net results of this grant were to allow ARC to further their extraction operations to Somerset. 22 Again, coming to the second case, it is seen that the question of the case need to be seen in the light of mixture of law and the surroundings of the case. This what is important is not the strict legal interpretation but what is found by way of applying laws specific to the case and reaching conclusions., through albeit a certain amount of liberalization. 23 Weeks v. United Kingdom: The first aspect that comes to mind is the case of unlawful detention of a person after being condemned by a competent court, under the provisions of Sec. 5(1) (a) of the Act. In Weeks v. United Kingdom, the facts were that a prisoner was let of under permission after serving 10 years in jail. However, within 1 year of granting the license, it was cancelled and he was returned to jail. The Courts were able to justify the recall and retention of the convict despite the aspects of Human Rights Act. Therefore, it could be said that the mere fact that HRA 1998, is present and that it needs to be applied wherever possible does not necessarily mean that member countries do not need to abide by EC conventions, as applicable and also implications of various other state and domestic laws that could impinge upon the case and the special circumstances that surround it. It could also be seen in terms of the fact that, whichever laws are most suitable to deal with such issues need to be made and also, the impact of European laws also need to be affected. It needs to be seen that EU laws and conventions are resorted when local justice machinery are exhausted, and therefore, it follows that appeal and tertiary process for due process of law and justice need to abide in all circumstances and situations. The main aspects would therefore be the fact that EU laws need to take into account the framework of local laws and also need to make necessary adjustments if need be. The question of precedence of state, supranational or EU laws needs to be viewed contextually and also it is to be seen that the due process of law and the carriage of justice, fair play and conscientiousness need to be imbued in all circumstances and situations. Monnell and Morris v. United Kingdom, (1988) 10 EHRR 205: In the case of Monnell and Morris v. United Kingdom, (1988) 10 EHRR 205, it was argued before the Strasborg Court, that the arrest time spent for appeal did not form part of the conviction time, and thus the conviction period was unconnected with this. The Strasborg Court rejected this proposition and verdicted that appeal time was a normal part of the length of imprisonment, and could not be treated separate of it. Further it is seen that matters relating to Strasborg may vary according to the impact of various jurisdictions and imposition of different laws and precepts, local, supernatorial and national. It is also seen that Section 3 of the HRA 1998, speaks of “as much as possible” that may be ambiguous and not contextual in certain cases. Therefore, in real terms what the section is intending is not a total concurrence with ECHR, but as much as is practicable under the circumstances It is seen that prior to the enactment of the HRA 1998, the European Convention reigned supreme in terms of dealing with supranational cases even those that affected different countries in its scope and applicability. However, post HRA in the United Kingdoms, it is seen that it holds major sway, especially in the context of R v. Secretary of State for the Home Department ex p. Brind [1991] AC 696 – see also R (Khail) v. Home Secretary [2006] EWHC 2139. 24 Again it is also seen that in many instances, the state laws needed to be changed or amended to suit the decisions and laws created by the European Conventions. It is also seen that in some cases, the local government was not inclined, or pre-disposed to invoke laws impose by the Convention, and chose to follow their own jurisprudence and legal propositions. This may have created conflict zones and the need for intervention by the Strasbourg Convention and other international laws to oversee that the process of law, justice and fair play is not lost or blurred, especially when, during gross civil rights violations human rights transgression, the local and domestic government of the aggrieved victims could not be more than mere spectators and watching bystanders in the criminal process and human rights violation. Thus, it became necessary for members of European Convention to step in, even in the cases of gross human rights violations, especially of minorities and indigent sections of the population who may not have much of a say in local administration. The role of the European Convention has been to ensure as far as possible that human rights violations, whether in an individualistic or group method, does not go unpunished whenever appeals or complaints are received by inhabitants or groups of any member country, and also supersede it wherever it is necessary to do so. But this does not mean that European Convention could make their own laws or dispense with local laws that do not serve their purposes. The impact of the Convention would be either to scrap the local laws if need be, or even in terms of amending laws to suit induction and enforcement of Convention, and as mentioned in Section 3, in as far as it is practically possible to do so. However, it is seen that Section 3 need not depend upon ambiguity or absurdity in the statute to be enforceable. 25 Main aspects of Section 3: Thus, it may be seen that in far as Section 3 is concerned, the main aspect would lie in its interpretation as much as it’s substantively and objectivism. While the main target area and focus of law, especially EC and supranational laws would be in terms of ensuring justice and fair play, not country centric but on a broad based and forwarding looking manner. It comes as no surprise to most lawmakers and jurisprudential experts and practitioners that to achieve reasonable concurrence or compatibility between EC laws and local laws is indeed a difficult proposition, especially in the idea of law before framing of the Human Rights Act 1998. This could also be seen in terms of the fact that the perceptions and perspectives of European Convention laws and favoured State or local laws may be on a collusion course, especially when certain litigative matters, challenging local laws need to be examined and assessed. This could again be said that local laws are drafted to serve limited and narrow interests of self governance, crime and its punishment and other aspects relating to individuals, communities and groups. Thus, at best, where the scope and applicability of local laws in a broad concept needs to be taken, especially in matters in which different countries are involved, local laws may not serve the purpose effectively and need to be under the aegis of broad framework of bigger and large impact legality. Thus, although the executory and implementation part of EC laws, mainly through the Strasbourg Convention is necessary and imperative, it needs to be contextualized into the identity of local laws for its ultimate success and sustainability. There have been various decided cases where State laws have either overlooked, or are in direct incongruence with Treaties and conventions enforced by the Conventions. It is also seen that the Conventions have the scope to either allow or to change local laws to suit a larger context, but essentially courts are not legislative makers, and their role is to pass verdicts to enforce existing laws. If Courts were given the powers and jurisdiction to change laws, the legal system would be inchoate, with a plethora of decisions, right wrong or steeped in ambiguity. Their enforcement would need amendments or redrafting, which in other words means more controversies and setbacks. Thus, more than brusquely Enforcing conventions into local or domestic laws, it would be more appropriate to widen or restructure the framework of existing laws to suit individual country specific needs, and requirements. Again it is seen that the major purpose for award of damages is to place the aggrieved or injured party in a condition, had the injury or loss not taken place. Under the jurisdiction of Strasbourg Court, it is seen that damages may repaid under be financial losses, non financial losses, costs and expenses. 26 The financial or pecuniary loss basis may be quite substantive and heavy. It is seen that in one case, breach of contractual obligations led to damages running into millions. This also becomes necessary when lower courts fail to reach satisfactory results or provide the kind of verdicts needed, by dint of which, the European Commission is constrained to take up the human rights matter, and the decision may often be overruled, much to the chagrin and disappointment of the party who were favoured in the lower courts. Conclusions: The main aspects that need to be seen are that the Convention does not seek to replace local or community laws. That is not their objective and it would not serve any purpose in the long run, since the State needs to function and run on its own laws, and not laws borrowed from the European Community. What the EC seeks to achieve and what has been earmarked in Section 3, is to make provisions and facilitation in State and country laws, that would, as is necessary and to the extent possible, allow it to broaden its legal framework that would allow a broader framework, making accommodation for these laws and conventions also that would be beneficial for the state and its law makers. Again, coming to areas of conflict and ambiguity between State and EC laws, it is seen that again, conflict resolution has to be an internal process that would not vitiate the future jurisprudential aspects of law, whether local or community. Under such circumstances, as has been decided by various case studies and legal precedents, whichever law is able to provide a genuine and objective verdict needs to be implemented, and in such cases it may also be necessary to subordinate state laws in the common interests and good of the European community as a whole. While local laws may serve governance interests for a province, state or a segment of the populace needs, EC laws takes into consideration, the interests of European community, devoid of country specific bias or proclivity. Again, the aspect of enforcement is also an important aspect. Due to major differences, it is quite possible that laws enforced in one country may not be enforceable in another due to a plethora of reasons like culture, exiting law, popular support and a host of other factors, extraneous or internal. Thus, in most countries it could be said that country specific needs of laws and the issues surrounding the case are very important considerations. And this may be one of the reasons that many factors of local laws like precedents, compatibility, etc, may be dispensed with in the case of convention laws. Section 3 may not be overriding – the case needs to be contextual: Everything said and done, it may be said that the aspects of Section 3 is not always overriding in that the local laws need to take cognisance of Convention laws, even in case of Human Rights issues and their solutions. Sometimes the local laws may lack teeth to address major issues, although affecting their rights and posits, are not formally authorized or empowered to address such issues effectively, efficiently and earnestly. In situations like this it becomes necessary for the convention to address such issues in the best of legal framework and institutional infra-structure available for rendering solutions that could possible address the core issues and offer valid and appropriate solutions that may be dispensable and favoured by all the litigants. Convention does not seek to replace or oversee local laws: It is indeed true when it is said that Convention does not seek to undermine or abdicate the rule of local laws, but is intended to reinforce it, underpin it and ensures that it meets standards of legal and jurisdictional performance that is expected from it, without fear or favour. 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