Human Rights Act 1998:
Aims:
Make ECHR rights accessible to people in Britain (not just citizens) through the domestic courts by ‘bringing rights home’.
Where domestic courts do not provide adequate protection, claims can still be taken to ECtHR.
Promote a culture of compliance with human rights through threat of enforcement.
Provisions:
s2 – Courts are to ‘take into account’ the prior decisions of ECtHR. While they are not obliged to follow its rulings (persuasive authority), [1] the courts generally follow what is set by the ECtHR.
Mirror principle: ‘The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’. [2]
In Horncastle, it was questioned whether a conviction based ‘solely pr to a decisive extent’ on hearsay evidence infringes ECtHR Art 6. ECHR precedent said this would infringe the right. [3]
The House of Lords disagrees, requesting the ECHR to reconsider this – creating a dialogue between domestic and international courts. ECHR does respond.
In Elan-Cane, E argued that there should be an obligation to include a gender-neutral option on passports derived from ECHR Art 8 and 14.
Lord Reed (for Court): ‘There is no judgment of the ECtHR which establishes a positive obligation to recognise a gender category other than male or female’.
s3(1) – Legislation is to be read so that it gives effect to ECHR rights, as far as possible.
In Ghaidan v Godin-Mendoza, following the death of their partner, it was questioned whether X could continue residence in their partner’s home. X was homosexual and the law did not grant him this right (he would have rights in a heterosexual relationship, even if not married). Note: This had already been challenged in the House of Lords by another surviving partner prior to the HRA and lost. [4]
The House of Lords held this breached the convention on right to private life and right to not be discriminated against. The court read the Rent Act to include homosexual couples too to make it compatible – read in ‘”as if they were” man and wife’.
[31]: ‘section 3 may require legislation to bear a meaning which departs from the unambiguous meaning the legislation would otherwise bear’
[32]: ‘Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant.’
[33]: ‘But courts should not adopt meanings inconsistent with “fundamental features of legislation … that would be to cross the constitutional boundary section 3 seeks to demarcate and preserve … The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed’
Millet LJ (dissenting) at [101]: ‘It is in my view not open to the courts to foreclose them by adopting an interpretation of the existing legislation which it not only does not bear but which is manifestly inconsistent with it.’
In R v A (No 2), A alleged they had reasonable belief in consent because he had had sex with V the week prior. Statute prevented previous sexual history from being heard as evidence and A claimed that ECHR Art 6 (Right to Fair Trial) was being infringed.
The court added an exception to the statutory rule to accommodate A’s defence and make it compliant.
‘there is no denying that interpretation under s 3 brings about significant changes in the traditional role of Parliamentary intention in statutory interpretation. It shifts the interpretive focus away from what Parliament originally intended, towards fulfilling the overriding goal of achieving compatibility with the Convention.’ [5]
s4 – If a court finds that domestic law is incompatible with a ECHR right, they may make a ‘declaration of incompatibility’.
s3(2) – A declaration of incompatibility does not affect the ‘validity, continuing operation or enforcement’ of incompatible primary legislation (delegated legislation may be declared void [6]). This system creates a dialogue between the judiciary and Parliament without undermining parliamentary sovereignty.
In Miranda, M, the partner of a journalist, was carrying journalistic material through an airport. The materials included disclosures about Edward Snowden. M was stopped by the police under terrorist grounds and refused to speak.
The court declared the statute that granted the police to arrest was incompatible with ECHR freedom of expression to journalists.
In Chester, the court was unwilling to make a declaration where the law might violate the rights of others, but didn’t violate C’s own rights.
In Nicklinson, the Supreme Court decided not to issue a DoI where the legal issue (current case on assisted suicide) was particularly difficult, controversial and sensitive and Parliament was already actively considering the issue.
s6(1) – It is unlawful for a public authority to act in a way incompatible with ECHR rights, except –
s6(2)(b) – if the authority could not have acted differently due to primary legislation.
s6(2)(b) – if primary legislation cannot be read in a way compatible with ECHR rights and the authority was acting to give effect or enforce the provision.
s6(3) – Public body includes ‘a court of tribunal, and any person certain of whose functions are functions of a public nature.’ This excludes Parliament or a person exercising functions in connections with Parliamentary proceedings.
In Cambell v Mirror Group, MG published information about C (model) coming out of alcohol and drug rehabilitation. The House of Lords held that the HRA gave ‘no new cause of action’ but did give ‘new strength and breadth’ of action for MG’s breach of confidence.
In Aston Cantlow v Walbank, W was liable to pay for repair of church roof to AC. AC was a public body, but the repairs were a ‘civil debt’, so ought to be considered private.
Lord Nicholls at [7]: ‘a public authority’ is ‘essentially a reference to a body whose nature is governmental in the broad sense of that expression’
In ‘Leonard Cheshire’, the court held that state-funded patients in a privately-operated care home could not sue under the Act because the care home was not a ‘public function’ under s6.
In YL v Birmingham CC, a resident was placed in a care home by local authority under their contract to SC. The Supreme Court majority (3:2) held that SC was ‘simply providing a service or services for which it charges a commercial fee’, so is not a public function.
The minority argued that SC was, in effect, a public body as it were acting as would have otherwise been performed by the council. Parliament later legislated in line with this view.
s7 – Claimants must be a victim of the unlawful act to bring an action. Note: difference to ‘sufficient interest’ standing rule in judicial review.
s19 – A minister must make a statement about a bill’s ECHR compatibility before the Second Reading, in writing and published. The Joint Committee on Human Rights was established to scrutinise this.
Constitutional Status:
The Human Rights Act does not expressly alter parliamentary sovereignty.
Parliament may still enact legislation that is in conflict with Convention rights, or even amend / repeal the Human Rights Act as it would any other piece of legislation. Therefore, the Act is not ‘entrenched’, nor has it ‘entrenched’ ECHR rights into our constitution. [7]
Arguably, the Act simply created a new form of judicial review for human rights cases. [8]
Tension and Dialogue:
The Constitutional Reform Act and Human Rights Act represent a move in the British constitution away from a ‘fusion’ model to a clearer separation of powers. [9] Courts have been granted powers to deal with matters that previously were not arguable before a judge due to their political nature. [10]
The general view is that tension between judiciary and executive is inevitable and good. [11] This leads to dialogue between the judiciary, executive and legislative about fundamental rights. [12]
‘Of course, in striking the balance the courts may arrive at a result unacceptable to Parliament. In such cases Parliament can act with great speed to reverse the effect of a decision. It has done so in the past. That is in the spirit of our constitution, and is wholly in accord with the democratic ideal.’ [13]
The declaration of incompatibility model generally works. [14] However, it does not provide a remedy to the current claimant. [15]
‘While therefore the courts have not acquired the power to strike down an Act of Parliament, the courts may under the Human Rights Act 1998 deliver a wound to Parliament’s handiwork that is likely to prove fatal, even though life support for it must be switched off by the government or by Parliament, not by the courts.’ [16]
In Hirst, domestic legislation prevented all convicted prisoners from voting in elections. The ECtHR held that it was contrary to convention rights to impose a blanket ban on all prisoners (but not that prisoner could not be excluded from voting). The ruling was unwelcome by successive UK governments, who failed to introduce corrective legislation.
ECtHR Perspective: failure to implement is a breach of the convention and the rule of law. UK Parliament Perspective: the saga reflects the democratic power of national legislature not being forced to adopt foreign law.
Legislation was introduced much later to allow certain prisoners to vote (based on sentence length), to comply with ECHR.
Resources:
References:
[1] Lord Irvine of Lairg, ‘A British Interpretation of Convention Rights’ [2012] Public Law 237, 239; Pinnock v Manchester City Council [2010] UKSC 45 [2] R (on the application of Ullah) v Special Adjudicator [2004] 2 AC 323, 350 (Bingham LJ) [3] Al-Khawaja and Tahery v The United Kingdom [4] Fitzpatrick v Sterling Housing Association Ltd [1999] UKHL 42 [5] A Kavanagh, ‘The role of parliamentary intention in adjudication under the Human Rights Act 1998’ (2006) 26 Oxford Journal of Legal Studies 179 [6] RR v Secretary of State for Work and Pensions [2019] UKSC 52 [7] Cf. human rights are entrenched in other legal systems (USA, Germany etc.) [8] A. Bradley, Paper to the House of Lords Constitution Committee: Relations Between the Executive, the Judiciary and Parliament, Sixth Report, Session 2006–07, Appendix 4 [9] House of Lord’s Constitution Committee, Relations Between the Executive, the Judiciary and Parliament, Sixth Report, Session 2006–07, ch. 2 [10] See Professor Anthony Bradley; Vernon Bogdanor; Charles Clarke MP; Professor Kate Malleson [11] See Sir Igor Judge; Lord Mackay; Lord Bingham [12] See Francesca Klug [13] Lord Steyn, ‘Deference: A tangled story’ [2005] Public Law 346-59 [14] All but one DoI has led to a statutory amendment; See Smith v Scott [15] See A and others v Secretary of State for the Home Department [2004] UKHL 56 (‘Belmarsh’ Case) [16] A. Bradley, ‘The Sovereignty of Parliament: Form or Substance?’, in J. Jowell and D. Oliver (eds) The Changing Constitution (7th edn. Oxford University Press 2011) 65
Cases Mentioned:
R v Horncastle [2009] UKHL 14
R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56
Ghaidan v Godin-Mendoza [2004] 2 AC 557
R v A (No 2) [2001] UKHL 25
R (on the application of Miranda) v Secretary of State for the Home Department and Commissioner of Police of the Metropolis [2016] EWCA Civ 6
R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63
R (on the application of Nicklinson) v Ministry of Justice[2014] UKSC 38
Campbell v Mirror Group Newspapers [2004] UKHL 22
Aston Cantlow PCC v Walbank [2003] UKHL 37
R (on the application of Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366
YL v Birmingham City Council [2007] UKHL 27
Hirst v United Kingdom (No 2) (2005) ECHR 681
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