Courts to Help the Human Rights Act 1998 Achieve its Objectives - Coursework Example

An Essay on the Ability of the Court to promote and help the Human Rights Act 1998 achieve its objectives I. Introduction The Human Rights Act 1998 (HRA) was a turning point for the legal system and the constitution of United Kingdom. The European Convention of Human Rights (ECHR) 1950 is a binding international agreement that United Kingdom helped to plan it and has tried to find a solution to comply with it for a long period of time. Using the Convention was basically taking a case to the European Court of Human Rights in Strasbourg however this was expensive and requires a lot of time. HRA was promulgated 2 October 2000 and has made rights from the ECHR enforceable in UK courts. Moreover the Act changes the procedure in the UK legal system and gives public authorities responsibility in their decision making also it requires UK courts to respect laws which are passed by Parliament which can make a decision to achieve and change the law. Yet despite the enactment of this landmark legislation, the question remains as to whether or not the courts have helped the Human Rights Act 1998 achieved its goals. To answer this question, let us look into the various aspects of the law and the case decided by the courts under it. II. Metamorphosis of the Act Before the enactment of the HRA, there was not a detailed explanation that public authorities and courts had to respect ECHR. The courts look at the ECHR in rare cases for instance if UK legislation is uncertain and there is a need to delve deeper into the issues of the case. In addition, the Act effected the government, public agencies and organizations at the centre of the UK legal system regarding the Human Rights Act. It means all public authorities must make sure that whatever they do is well-matched with the Convention rights except an Act of Parliament makes it impossible. In all cases the courts must consider the Convention rights even if they do not involve public authority. However, if the public authority breached someone’s rights then she/he can take a separate case under the Human Rights Act. Widely, public authorities are official bodies who work for the good of the public such as local authorities, immigration officers, the police, hospitals and departments of central government. In R v Hampshire Farmers Market Ltd.1 Case, a company which had the authority to stop the plaintiff from holding a stall at the local farmers market was considered as a public authority. Although, in R (West) v Lloyd’s of London2, a charity which provides residential care have been held not to be a public authority. In some circumstances, even though a public authority did not breached Convention rights directly, the authority possibly responsible for failing to protect persons from others who have. The liability to protect against the acts of other people which breach Convention rights is sometimes named as a positive obligation. Furthermore, where there is a separate case under the Human Rights Act a person have to decide in which court to start the trial. For example where the case connected to the judgment of a public authority, the right action will be to apply judicial review in the High Court. Where there is a case which relates to an act or negligence by public authority, the court usually takes into consideration the human rights issue, also it looks at the related law to see whether the public authority had any choice in the matter. The court firstly seeks if it is possible to interpret the legislation to see that is compatible with the Convention rights. If the public authority has unlawfully or wrongfully stepped on the rights of a person, group of persons or entities, the court can resolve the issue at hand by using the authority vested upon it by the HRA to interpret the legislation and make sure that it is compatible with the provisions of the ECHR. Technically, what the HRA did is simply allow the court to use its existing powers to interpret and rule upon the compatibility of certain legislations in relation to the ECHR and other laws. For instance, an Employment Tribunal has no power to make an order to stop the authority from breaching persons human rights under the Act and for that kind of order people should go to County Court or High Court. On the other hand, HRA extends the power to award damages for a breach of the Convention rights under the Act to court which has the authority to order expenditure of damages or compensation in a civil case. Besides, award damages may include loss of earnings, loss in value of property or loss of employment prospects in brief actual financial loss. Section 3(1) of the HRA provides that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’3 Section 3(2) applies to primary and subordinate legislation and does not affect its validity, continuing operation or enforcement.4 This confirms that the courts are not powerful to incapacitate (strike down) the Acts of Parliament which they found to be incompatible with Convention rights. Moreover HRA 1998 provides power for the Court to issue a declaration of incompatibility. Section 4 of the HRA states that the courts can inform the government that a provision of legislation is incompatible with that of the ECHR and recommend for the amendment of such incompatible provisions of the law. As mentioned in this section only the House of Lords, the Court of Session or High Court of Judiciary, the High Court, the Court of Appeal, the Judicial Committee of the Privy Council and the Courts-Martial Appeal Court can make a declaration of incompatibility. A declaration under this section will not affect the validity, continuing actions or enforcement of the provision in respect of which it is given and is not binding on the parties to the proceedings in which it is made.5 III. Interpretation of the Law Section 3 of the HRA imposes a duty on all the courts and legal tribunals in the country to interpret legislation and determine its compatibility with the legal rights provided under the European Convention on Human Rights ECHR. This obligation to interpret the compatibility of certain legislations is a double edge sword and is a subject to much debate. Note that under this provision, the courts cannot actually invalidate the legislation by declaring it as incompatible with the ECHR and the HRA but permits the amendment of such legislation. Also, the courts cannot interpret the Acts of the Parliament in such a way that may undermine the intent of the Parliament. The compatibility clause in the HRA often causes issues in terms of its application in the regular courts. Note that under Section 6 of the Act, the duty to act compatibly with the Conventional Rights is deemed obligatory on public bodies. The compatibility test to the Conventional Rights is also applicable among private entities that are performing public functions. As it is, the provisions of this law which was originally intended to affect public entities are now encroaching into the realms of the private sector in an unmistakably horizontal application. Since the HRA mandates judges to act in compatibly with the HRA, this often leads the judge to use the HRA in resolving actions brought to court by private persons. Although the HRA is generally designed to have a vertical effect on its subject, it also indirectly has a horizontal effect owing to the provisions set therein. As in the case of Campbell v MGN Ltd6 where Naomi Campbell sued the Mirror for an article which she claimed violated her right of privacy, the courts ruled that Ms. Campbell can use the provisions of Article 8 of the ECHR to take action against the private company. The basis for allowing Ms. Campbell to use Article 8 of the ECHR is that she has a right to confidentiality and such right has been violated by the Mirror in publishing information that may prove to be derogatory to her career. In the words of Lord Nicholls in this case “The values embodied in Arts 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body…”7 Note that in this case, the court considered the private rights of the complainant under the ECHR in determining her legal standing to sue the private respondent. IV. Approaches Used by the Courts Interpreting the compatibility of legislations with the ECHR often prove to be a difficult tasks for judges and the courts often encounter cases when it cannot interpret the legislation as compatible with the ECHR. Since the court may not be able to interpret legislations as compatible with the ECHR, its remedy is to make a Declaration of Incompatibility with respect to certain provisions of such legislation. However, if you take a look at Section 4 (6) (a) of the HRA, the Declaration of incompatibility may not have a direct impact on the powers afforded by such legislation but rather, it has the ability to pressure the legislative body to remove the incompatible provisions therein. To address the issues involving the interpretation of the law, the courts adopt two declaratory approaches called as ‘activist and minimalist’. In the case of R v A8, the court took on the activist approach and the House of Lords adopted a broader approach to explanation of domestic legislation so as to guarantee its compatibility with the Convention. According to Lord Steyn, the House of Lords must mostly take into consideration of the decision of Parliament. Moreover; the activist approach can also be seen in the case of Douglas v Hello!9, which represents the common law right to privacy. On the other hand, the minimalist approach would be Brown v Scott10, the court considered the Parliament’s intentions rather than to any ‘Convention minded’ interpretation of legislation. The problem with both the activists and minimalists approaches is that they have the tendency to tie the hands of the courts and may curtail or expand to some extent the powers granted by the HRA. The liberal and pro-active interpretation of the provisions of the law may afford the court more latitude in deciding cases pending upon it while the more restrained approach to its interpretation may limit the rights of the parties and result in the failure of the court to actually decide on the merit of the case. Note that the court has the option to declare the legislation incompatible with the provisions of the HRA, thus, give itself the excuse to defer ruling on the case at bar pending the time when the parliament acts on its recommendation to amend the provision cited as incompatible. Although the declaration of incompatibility is often seen as a last resort by the courts but since this declaration is binding and remains in force until Parliament itself removes it11, the declaration still has a big impact on the outcome of the case at bar. This situation now brings us to the point where we need to assess as to whether or not the court is actually helping the HRA realize its objectives. Come to think of it, because Section 6 says that “all judges, in all cases, in all courts and tribunals…” must act consistently with the Conventional rights in interpreting statutes, developing of common law and in exercising judicial discretion, courts are now forced to adjudicate private cases using the HRA12. If the primary design of the HRA is to have a vertical effect on the public sector, the idea that the law can be used to lay down common laws affecting private individuals may seen rather far away from the original objectives of the law. On the other hand, if we take into consideration the ideal starting point where human rights instruments should be given generous interpretation, the encroachment of the HRA into the private realms may be seen as a welcome development. The only problem here is that the courts tend to be narrow in its interpretation of the law to the point that it does fully appreciate the specific values espoused by the ECHR13. By failing to identify the many opportunities presented to take more active part in the evolution of constitutional rights, the court in effect does not help the HRA achieve its objectives. V. Conclusion According to Costigan (2006), under the context of section 6 of the HRA, the Convention values seem to be “invisible to the courts when adjudicating the human rights obligations of public authorities…”14. Note that the guiding principle under the Convention espouses and positive obligation on all judges in all courts to embrace the idea that rights must be effective and not just theoretical. As it is, judges must interpret the provisions of the law is a pro-active manner that allows for a more dynamic application of a positive obligation. We have to understand that the implied positive obligations imposed on judges under the HRA are creative responses that will allow the judges to transcend beyond the constraints of the letters of the law. However, the fact that the law itself is silent as to what extent judges may extend the interpretation of the law also tie the hands of the judge and force them to narrow down their interpretation of the law lest their actions be declared as ultra vires. Just the same, when the courts fail to accept the positive obligation to create a more dynamic approach to its judicial duties, we can say that the court is wasting the opportunities afforded by law to expand and stretch the powers granted to it. References: Books and Journals: 1. Costigan, Ruth (2006) Determining ‘Functions of a Public Nature’ under the Human Rights Act 1998: A New Approach European Public Law, Volume 12, Issue 4 577 Kluwer Law International 2. Ghandhi Sandy, International Human Rights Documents 6th Edition 3. Holland, James; Webb, Julian (2006). Learning Legal Rules. Oxford University Press Laws and Cases: 1. Brown v Scott [2001] 2All ER 97 2. Campbell v MGN Ltd [2004] UKHL 22 3. Douglas v Hello! [2001] 2 WLR 992 4. European Convention on Human Rights 5. Human Rights Act 1998 6. In R v Hampshire Farmers Market Ltd. Ex p. Beer [2002] EWHC 2559 7. R v A [2001] 2 WLR 1546 8. R(West) v Lloyd’s of London [2004] 3All ER 251 Read More