...And the other half of the assignment
May. 27th, 2004 10:18 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
major_clangerThe second essay of my TMA. Human Rights law this time, which is maybe not quite as boring as European law...
TMA 3 Part 2
Q)
The long title of the Human Rights Act 1998 describes the Act as "An Act to give further effect to the rights and freedoms guaranteed under the Convention".
Explain how the Act incorporated the provisions of the European Convention on Human Rights into law in England and Wales, and how far it gives "further effect" to the rights and freedoms under the Convention. How successful do you think the Act has been in protecting rights and freedoms?
A)
The European Convention on Human Rights is an international Convention, drawn up in 1950 and now ratified by 40 nations, that sets out basic rights that member states undertake to respect. However, member states may reserve certain laws as not challengeable under the Convention, and may derogate from specified provisions of it. Legal questions arising from the Convention are decided by the European Court of Human Rights in Strasbourg. The Convention is a treaty binding in international law but of itself has no national application. However, it and the decisions of the Court had strong persuasive authority in UK courts even before the Human Rights Act 1998 came into force.
Prior to HRA 1998, individuals claiming that their Convention rights had been violated had to take their case to Strasbourg, a prolonged and complex process. The Court could award damages and costs but had no power to overturn UK national law. However, there was only one instance (Brogan v UK (1998) 11 EHRR 177) where the UK did not amend its law in response to a Court judgment; instead, it derogated from Article 5(3) of the Convention.
The incoming 1997 Labour administration considered this situation unsatisfactory and introduced HRA 1998. This Act did not simply incorporate the Convention into UK law; rather it introduced an obligation for public bodies (including the UK courts) to act in accordance with its provisions. The Act implements this as below:
HRA 1998 does not incorporate all elements of the Convention. Article 13 regarding provision of an effective remedy in a national court is omitted so as to preserve Parliamentary supremacy, and Article 5(3) regarding detention without trial is derogated to permit provisions of anti-terrorism legislation. However, s11-13 amplify Convention provisions on rights such as freedom of expression, thought and religion.
Before HRA 1998, UK law did not recognise specific ‘human rights’. Rather, the view of Dicey was prevalent: ‘civil liberty’ existed as the absence of restraints on individual behaviour other than those specified in law [OU 2003]. As Lord Irvine LC noted, though, an alternative view was that:
“Prior to the Act, ‘freedom’ was no more than what was left over after all the law’s prohibitions had been obeyed.” [Irvine 2002]
The absence of restraint applied equally to the State in the absence of legislation to the contrary, as was demonstrated in Malone v Metropolitan Police Commissioner (No. 2) [1979] 2 All ER 620, where the High Court held that telephone tapping had not violated the claimant’s right to privacy (asserted under the Convention) as this did not exist in English law.
There was also limited scope for challenging acts of the state or public authorities via judicial review in respect of Convention rights. The Wednesbury principle is that such acts are unlawful if they are wholly unreasonable [Harris 2002] but this has little bearing on conformance with the Convention. Even less was there scope for relying on Convention rights to challenge conduct amounting to passive neglect or delay by public bodies.
Since coming into effect though, the Act has explicitly required state and public body compliance with Convention rights. s3 requires UK courts to interpret – and even reinterpret – legislation such as to comply with the Convention, even to the point of effectively rewriting it in the process. Convention rights now have the force of law; Lord Falconer LC, quoting Vernon Bogdanor, noted that UK courts now deduced rights from law, rather than having to induce them from specific cases [Falconer 2003]. There is now much wider scope for judicial review on Convention rights issues, as exemplified by challenge to Prison Service policy of separating inmates from their children at a set age in R(on behalf of P) v Secretary of State of the Home Department [2001] 1 WLR 2002. The Act has also been invoked to require public bodies to remedy shortcomings and delays that impact on Convention rights, as in the failure of a council to properly house a disabled person addressed in R(Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin).
HRA 1998 has clearly had effect, but has it been effective? When proposed, it was suggested that it would allow the judiciary to usurp Parliamentary supremacy, and drown the courts in litigation. The former concern has in practice been constrained by s3’s provision that primary legislation cannot be overturned under the Act. As for case load, the Department of Constitutional Affairs undertook an analysis of the impact of the HRA over the three months after it came into effect and found that, be it measured by number of cases, their duration or the number of Community Legal Service certificates issued, the increase was negligible [DCA]. This survey was arguably too early to identify long-term trends but it suggests that the anticipated ‘tidal wave’ of HRA-related claims did not materialise.
The Act does have drawbacks, such as the vague s6 definition of ‘public body’. I myself have concern at use of the Act to second-guess urgent crisis decisions, e.g. the recent action regarding a shooting by British troops in Kosovo at Bici and another v Ministry of Defence [2004] EWHC 786 (QB), [2004] All ER (D) 137 (Apr). Nonetheless, it has been implemented very smoothly, an achievement ascribed by Lord Woolf LCJ to extensive training of legal practitioners and familiarity of judges with the prior persuasive influence of the Convention and of the mechanisms od European law [Woolf 2003]. As Cherie Booth QC (admittedly not a disinterested observer!) notes though, its greatest long-term achievement may be to ensure that a ‘human rights’ culture permeates both UK law and society at large [Booth 2003].
References and Sources:
Booth, C., QC, ‘The Human Rights Act: Riding the Tidal Wave’, Matrix Chambers 28 March 2003.
Department for Constitutional Affairs, ‘Human Rights Act 1998: A Statistical Update’, The Department for Constitutional Affairs, Statistics (undated).
Lord Falconer LC, ‘Speech at Visions of Freedom Exhibition’, The Department for Constitutional Affairs, Publications – Speeches 10 December 2003.
Harris, P. (2002), An Introduction to Law, (6th edition) Butterworths, London.
Lord Irvine LC, ‘The Human Rights Act Two Years On: An Analysis’, The Department for Constitutional Affairs, Publications – Speeches 1 November 2002.
Lord Woolf LCJ, ‘Speech on the occasion of the opening of the judicial year at the European Court of Human Rights’, The Department for Constitutional Affairs, Publications – Speeches 23 January 2003.
Open University (2003) W200 Understanding Law, Units 14/15, How are Human Rights protected in the UK?, Milton Keynes, The Open University.
TMA 3 Part 2
Q)
The long title of the Human Rights Act 1998 describes the Act as "An Act to give further effect to the rights and freedoms guaranteed under the Convention".
Explain how the Act incorporated the provisions of the European Convention on Human Rights into law in England and Wales, and how far it gives "further effect" to the rights and freedoms under the Convention. How successful do you think the Act has been in protecting rights and freedoms?
A)
The European Convention on Human Rights is an international Convention, drawn up in 1950 and now ratified by 40 nations, that sets out basic rights that member states undertake to respect. However, member states may reserve certain laws as not challengeable under the Convention, and may derogate from specified provisions of it. Legal questions arising from the Convention are decided by the European Court of Human Rights in Strasbourg. The Convention is a treaty binding in international law but of itself has no national application. However, it and the decisions of the Court had strong persuasive authority in UK courts even before the Human Rights Act 1998 came into force.
Prior to HRA 1998, individuals claiming that their Convention rights had been violated had to take their case to Strasbourg, a prolonged and complex process. The Court could award damages and costs but had no power to overturn UK national law. However, there was only one instance (Brogan v UK (1998) 11 EHRR 177) where the UK did not amend its law in response to a Court judgment; instead, it derogated from Article 5(3) of the Convention.
The incoming 1997 Labour administration considered this situation unsatisfactory and introduced HRA 1998. This Act did not simply incorporate the Convention into UK law; rather it introduced an obligation for public bodies (including the UK courts) to act in accordance with its provisions. The Act implements this as below:
- s2 obliges UK courts, at any level, to decide any issue relating to a Convention right in accordance with the decisions of the European Court of Human Rights.
- s3 requires UK courts to interpret, as far as possible, primary and secondary legislation so as to be consistent with the Convention. If this is not possible, a declaration of incompatibility is made under s4; this does not affect the ongoing validity or enforcement of the legislation, but s10 provides for a fast-track process to amend it so as to remove the incompatibility.
- s6 places a statutory duty on public authorities to act in accordance with Convention rights. Such authorities include the UK courts, although not Parliament. If an authority fails to do so, the victim may bring proceedings and gain relief in the appropriate UK court.
HRA 1998 does not incorporate all elements of the Convention. Article 13 regarding provision of an effective remedy in a national court is omitted so as to preserve Parliamentary supremacy, and Article 5(3) regarding detention without trial is derogated to permit provisions of anti-terrorism legislation. However, s11-13 amplify Convention provisions on rights such as freedom of expression, thought and religion.
Before HRA 1998, UK law did not recognise specific ‘human rights’. Rather, the view of Dicey was prevalent: ‘civil liberty’ existed as the absence of restraints on individual behaviour other than those specified in law [OU 2003]. As Lord Irvine LC noted, though, an alternative view was that:
“Prior to the Act, ‘freedom’ was no more than what was left over after all the law’s prohibitions had been obeyed.” [Irvine 2002]
The absence of restraint applied equally to the State in the absence of legislation to the contrary, as was demonstrated in Malone v Metropolitan Police Commissioner (No. 2) [1979] 2 All ER 620, where the High Court held that telephone tapping had not violated the claimant’s right to privacy (asserted under the Convention) as this did not exist in English law.
There was also limited scope for challenging acts of the state or public authorities via judicial review in respect of Convention rights. The Wednesbury principle is that such acts are unlawful if they are wholly unreasonable [Harris 2002] but this has little bearing on conformance with the Convention. Even less was there scope for relying on Convention rights to challenge conduct amounting to passive neglect or delay by public bodies.
Since coming into effect though, the Act has explicitly required state and public body compliance with Convention rights. s3 requires UK courts to interpret – and even reinterpret – legislation such as to comply with the Convention, even to the point of effectively rewriting it in the process. Convention rights now have the force of law; Lord Falconer LC, quoting Vernon Bogdanor, noted that UK courts now deduced rights from law, rather than having to induce them from specific cases [Falconer 2003]. There is now much wider scope for judicial review on Convention rights issues, as exemplified by challenge to Prison Service policy of separating inmates from their children at a set age in R(on behalf of P) v Secretary of State of the Home Department [2001] 1 WLR 2002. The Act has also been invoked to require public bodies to remedy shortcomings and delays that impact on Convention rights, as in the failure of a council to properly house a disabled person addressed in R(Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin).
HRA 1998 has clearly had effect, but has it been effective? When proposed, it was suggested that it would allow the judiciary to usurp Parliamentary supremacy, and drown the courts in litigation. The former concern has in practice been constrained by s3’s provision that primary legislation cannot be overturned under the Act. As for case load, the Department of Constitutional Affairs undertook an analysis of the impact of the HRA over the three months after it came into effect and found that, be it measured by number of cases, their duration or the number of Community Legal Service certificates issued, the increase was negligible [DCA]. This survey was arguably too early to identify long-term trends but it suggests that the anticipated ‘tidal wave’ of HRA-related claims did not materialise.
The Act does have drawbacks, such as the vague s6 definition of ‘public body’. I myself have concern at use of the Act to second-guess urgent crisis decisions, e.g. the recent action regarding a shooting by British troops in Kosovo at Bici and another v Ministry of Defence [2004] EWHC 786 (QB), [2004] All ER (D) 137 (Apr). Nonetheless, it has been implemented very smoothly, an achievement ascribed by Lord Woolf LCJ to extensive training of legal practitioners and familiarity of judges with the prior persuasive influence of the Convention and of the mechanisms od European law [Woolf 2003]. As Cherie Booth QC (admittedly not a disinterested observer!) notes though, its greatest long-term achievement may be to ensure that a ‘human rights’ culture permeates both UK law and society at large [Booth 2003].
References and Sources:
Booth, C., QC, ‘The Human Rights Act: Riding the Tidal Wave’, Matrix Chambers 28 March 2003.
Department for Constitutional Affairs, ‘Human Rights Act 1998: A Statistical Update’, The Department for Constitutional Affairs, Statistics (undated).
Lord Falconer LC, ‘Speech at Visions of Freedom Exhibition’, The Department for Constitutional Affairs, Publications – Speeches 10 December 2003.
Harris, P. (2002), An Introduction to Law, (6th edition) Butterworths, London.
Lord Irvine LC, ‘The Human Rights Act Two Years On: An Analysis’, The Department for Constitutional Affairs, Publications – Speeches 1 November 2002.
Lord Woolf LCJ, ‘Speech on the occasion of the opening of the judicial year at the European Court of Human Rights’, The Department for Constitutional Affairs, Publications – Speeches 23 January 2003.
Open University (2003) W200 Understanding Law, Units 14/15, How are Human Rights protected in the UK?, Milton Keynes, The Open University.
